Alex Gallacher (SA, Australian Labor Party) Share this | Hansard source

I have a couple of questions to go to the minister. In setting out those questions, I just want to go to a contribution I made yesterday which relates to wage theft. Basically, there was a worker who worked from 2 November to March 2017. His exact words were: 'I was so happy to get a job I just took an ABN number as being a condition of that job.' He didn't bring anything to work like a truck or a tool or a set of vehicles. He basically brought his driving skill and his uniform of the day. Six years later, he got the sack. In getting the sack, he went to the appropriate person, the Fair Work Ombudsman. He got a decision from the Fair Work Ombudsman—not a nod or a wink or a cup of tea and a chat about 'Perhaps you've got no case,' but a decision—issued on 13 July 2018 against the people who had employed him who had incorrectly classified him as a contractor, not an employee, incorrectly paid him and failed to pay his superannuation. So he had a decision from the Fair Work Commission saying, 'Pay this man his due entitlements within seven days.'

The Australian Taxation Office looked at his nonpayment of super and said: 'You're owed super; there are no two ways about that.' The ATO's action is so slow that he has no idea where it's up to. So he's owed for the underpayment of wages and he's owed for the underpayment of super and he's proceeded, under the existing laws that your government has in place, to a decision under the Fair Work Act 2009—Melbourne, 13 July 2018, and a decision or a finding of contravention of the Fair Work Ombudsman, dated 19 October 2018. He got no money. He's got no job. He hasn't been paid.

What would happen, Minister, if a group of his fellow workers were to take a bit of umbrage at the fact that this person's been incorrectly classified, incorrectly paid, denied his superannuation and gone to the legal jurisdictions of the country—the Fair Work Ombudsman, the Fair Work Commission and the ATO—and the some sum total of those three organisations is a zero result for the worker, absolutely nothing years after he commenced this action. I dare say that if this were an organised yard (a) it probably wouldn't happen because we'd be on the ball a bit earlier than this poor worker and (b) if the employer refused to pay some action could ensue—and all of that action would be illegal. And were it to be spontaneous—that is, not organised by the union per se or its official—you could issue against the individual workers. You could fine them. If it's proven to have been organised by the officials or the union, you can fine them—and there's not a lot of discretion in that these days.

So you've got a situation where wage theft is rampant, someone follows all the protocol of the land, all the laws of the land, to get all the way down the path of paper decisions and no result financially. And your response is to make it tougher for unions to try and do their job. Your response is: 'We're going to ensure integrity.' I think we're going to have a little bit of an issue along the way. So I'd like the minister to say: why is it that the Fair Work Ombudsman will not pursue a director of a company who is proven by that organisation to have underpaid? Why is it that, when there's a decision of the Fair Work Commission ordering those people to pay, the Fair Work Ombudsman won't take them on, yet they will take on, on very spurious grounds, all sorts of other activities alleged to have happened or to have been conducted by trade unions and others?

The type of offence in the legislation is that, if you don't lodge the paperwork that says you donated $1,000 or more, it's a $21,000 fine. You can get fined $21,000 if you're a union and you don't lodge all the paperwork which says who you donated $1,000 or more to. But, if you're a company and you underpay a worker $11,000 plus 9½ per cent super, the Fair Work Ombudsman doesn't even pursue you. It just issues a bit of paper and says, 'That's what they should pay.' If you don't pay, nothing happens. I think the minister needs to answer both those questions. What is the penalty for the Fair Work Ombudsman not doing its job in taking on directors, if there is a penalty in that respect? It seems to me quite remiss for that to be the way it is.

There have been two cases in Adelaide, two absolutely catastrophic cases, which lead us to this issue of safety and how this legislation works when there is an unsafe situation. The Supreme Court of South Australia has on its books a tale of woe which is incredible. The company truck was involved in a near miss, with an employee driver. The next day the company truck was involved in a fatality. The company truck had poor brakes—catastrophically faulty brakes. The driver ended up doing 160 kilometres an hour down a hill. He killed two people and lost his leg. There's a clear evidentiary trail that there was a failure of maintenance and there was a failure in that an employee driver had a near miss. What was the response? The response was to put a labour hire person in the truck, who had even less training, skill and experience than the employee driver.

I'll tell you what used to happen in that particular yard, because I know that organisation exceedingly well. It's a waste company in Adelaide that's operated for many years. I'll tell you what would happen if that truck was reported by an employee driver to have faulty brakes. The Transport Workers Union delegate in that yard would've said: 'It doesn't move. If it moves, no-one in this yard is moving.' Now, that's illegal. It might have saved a fatality or two, but it's illegal. What you have now, with the safety problems that are arising in transport, is people being sent out in unserviceable, unsafe vehicles, and there is no immediate remedy other than court action after a fatality.

We had an employer in Adelaide who was jailed for 12 years for persistently sending people out in vehicles with poor brakes or no brakes. His attitude was, 'Well, he shouldn't have driven it into the pole.' The driver took evasive action. Rather than running into the traffic in front of him or careering across into the oncoming traffic, he steered off the road, hit a pole and lost his life. The employer got 12 years jail, and the findings in that case are absolutely horrendous. But what actually happens in the transport yard at five or six o'clock in the morning, when there are 50 trucks going out and someone says, 'My truck is unsafe'? What used to happen is: 'Well, if it's unsafe, mate, park it up and get another one. If there isn't another one, wait till they get you one. Send it back to the workshop.' But now that is being construed as an lawful action. It's in the enterprise agreement. If you have a yard meeting and you hold things up for an hour or two, down comes the ROC. There's no leeway at all. You're deemed to have taken unlawful industrial action, and there doesn't appear to be any remedy to safely get this situation under control. Minister, how come your Fair Work Commission doesn't take on directors who have been found to be negligent and not paying wages and super, by the Fair Work Commission, the ATO and the Fair Work Ombudsman?

In respect of safety, what's the plan here? How do we keep the travelling public safe? How do we keep the place safe? Unions will always go on the side of conservatism in terms of safety. They will advise workers not to do something if it's unsafe. I would guarantee that, if any official were contacted in South Australia or the Northern Territory, or the whole of Australia, in respect of an unsafe vehicle, their advice would be, 'Don't do it.' That then is construed as unlawful action. That official then can be cited and, after three goes, chucked out of his job. All he's trying to do is keep the world safe, keep the roads safe and keep people safe. I would be very pleased if the minister could answer that set of questions.