Christian Porter (Pearce, Liberal Party, Minister for Social Services) Share this | Hansard source

I thank the member for Melbourne for his contribution. The amendments that the member for Melbourne seeks to move, (1) to (3), would in effect amend the Fair Work Act to reverse the onus in underpayment cases. So, where the employer had failed to keep proper records under section 535—in other words, the employer would have failed to produce employee records to the employee on request under the Fair Work regulations—the employee's underpayment claim is assumed to be correct, unless the employer proves otherwise. The amendments would say that this would not apply in exceptional circumstances beyond the employer's control. The government's position is not to accept these amendments. The government opposes amendments (1) to (3), which reverse the onus, because it does not consider that in these relevant circumstances reversing the onus, which is a very significant matter in jurisprudence of this type, is justified. In underpayment cases, the applicant bears the onus of proof, and there is insufficient justification in all the circumstances to change that very fundamental principle of justice.

In this sense, we consider the proposal is not fair, because it starts with the assumption that all employers are doing the wrong thing, and that is an assumption that the government cannot agree with. It also may encourage opportunistic claimants and would punish small businesses that have limited resources and are more likely to make genuine errors. This proposal from the member for Melbourne, unfortunately, is indiscriminate. It puts every employer who fails to keep proper records in precisely the same situation, whether the underpayments have been deliberate or not. Our assessment of the defence that is, in effect, promoted by the member for Melbourne—that of exceptional circumstances—is that that defence of exceptional circumstances is framed so narrowly that it would virtually never apply.

The government have proposed in this bill what we think is a more nuanced approach, which targets the problem of deliberate wrongdoing, where employers have opted to consciously, deliberately and systemically underpay their employees. This series of amendments, (1) to (3), is a series that the government are not going to support.

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