Adam Bandt (Melbourne, Australian Greens) Share this | Hansard source

by leave—I move amendments (1) to (3) on sheet 2, as circulated in my name, together:

(1) Schedule 1, heading to Part 1, page 3 (lines 2 to 4), omit the heading, substitute:

Part 1—Contraventions of civil penalty provisions

(2) Schedule 1, page 3 (after line 8), after item 1, insert:

1A At the end of section 535

Add:

Note: If an employer does not comply with an obligation under the regulations dealing with the inspection of records, the onus of proof may be reversed in proceedings in relation to a contravention of certain civil remedy provisions.

(3) Schedule 1, item 13, page 7 (after line 18), after section 557B, insert:

557C Failure to allow records to be inspected—reversal of onus

(1) If:

(a) an application is made under this Part in relation to a contravention by an employer of a civil remedy provision referred to in subsection (2); and

(b) a matter is alleged in the application in respect of which the employer is required under section 535 to make and keep employee records; and

(c) the employer has not complied with a requirement under the regulations for the inspection of the records by an employee, or former employee, to whom the application relates;

it is presumed that the matter is as alleged by the applicant, unless the employer proves otherwise.

(2) The civil remedy provisions are the following:

(a) subsection 44(1) (which deals with contraventions of the National Employment Standards);

(b) section 45 (which deals with contraventions of modern awards);

(c) section 50 (which deals with contraventions of enterprise agreements);

(d section 280 (which deals with contraventions of workplace determinations);

(e) section 293 (which deals with contraventions of national minimum wage orders);

(f) section 305 (which deals with contraventions of equal remuneration orders);

(g) subsection 323(1) (which deals with methods and frequency of payment);

(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);

(i) subsection 325(1) (which deals with unreasonable requirements to spend amounts);

(j) any other civil remedy provisions prescribed by the regulations.

(3) Subsection (1) does not apply where, despite all reasonable care having been taken by the employer, the employer is unable to comply with a requirement in the regulation for the inspection of records due to exceptional circumstances beyond the employer's control.

These amendments concern what happens when a worker is making a claim for an underpayment and the employer has not kept proper records of the hours that the worker has worked. The government has said that, in introducing the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, one of the things that brought it here was the horrendous exploitation at 7-Eleven, which was revealed by many courageous people who came forward and broke their silence, a number of investigative journalists at Fairfax and Michael Fraser, an advocate who has pursued this matter relentlessly.

One of the things that became clear during the investigations, including during the Senate inquiry, was that records that were being kept by 7-Eleven businesses were not always what they seemed. In fact, there were situations in which people were being asked to work different hours to what was appearing in the records. That was one of the ways in which some significant exploitation was occurring: sign the book to say that you have worked X hours but we are in fact only going to pay you for Y hours. Often that came with a subtle threat to many of these overseas workers who were here on visas: if you complain about it then we are going to have your visa revoked and you are going to be deported.

What is crystal clear from all of this and the reason that we are debating this bill is that, in many instances, workers are being exploited in ways that involve dubious record keeping. This is one of the key ways in which vulnerable workers get exploited. Not only that; I know, as someone who before coming into this parliament spent 12 years standing up for many vulnerable workers and bringing litigation on their behalf, there may be instances where no records are kept at all. It is something that is so critical that the Fair Work Ombudsman has recently developed an app for it and has gone out publicly and promoted it so that workers themselves can use the app to record the hours of work that they keep. It has been identified as such a problem that, where you do not have accurate records, it may be a barrier to bringing a successful prosecution for getting your pay.

The Fair Work Ombudsman knows that it is such a problem that it is encouraging people to download an app so that employees can keep an accurate record of the hours that they work. When those employees bring a complaint or a prosecution through either the Fair Work Ombudsman or someone else they may have a good record—hopefully they do—but it may be the case that the employer has kept no record or that they have kept a dodgy record, and that may in fact be part of the claim. We know it is widespread that employers do not keep proper records in situations that involve vulnerable workers, and this amendment addresses that problem. It says that if an employee brings a claim and the employer has not kept proper records as required by law then the evidentiary onus shifts and it is presumed that the claim made by the worker is right, unless the employer can rebut it. That is a very sensible amendment, because it only applies where employers have not complied with the law. It does not apply in every case.

Where employers have breached the law and not kept proper records, as they are required to do, it is presumed an employee's claim is right, unless the employer can disprove it. This will encourage employers to do nothing more than abide by the law. It is imposing no obligation on them. They could discharge the effect of this amendment if they keep records as required by law. So it is a very sensible amendment that gives effect to the bill, and it is one that the government and the opposition should support, because it will allow many of the complaints that the government has spoken about during this debate, such as those that have been uncovered at 7-Eleven, to be successfully prosecuted. I remind the government that it only applies in instances where the employer has failed to comply with the law, so it does not impose additional obligations over and above that. I commend these amendments to the House.

See this speech in context