Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Hansard source

Yes.

The CHAIR: Minister, I call you now.

In the first instance, in responding to the amendments, could I just explain what a cashback scam is for the benefit of the Senate. A cashback scam is a request from an employer that an employee pay back part of their wages to the employer or a third party. What this effectively does is let the employers undercut the safety net while appearing, at face value, to comply with workplace rules. It is particularly difficult to prove as vulnerable workers are unlikely to make a complaint and there is often no paper trail. The cashback scam was most notably used by some 7-Eleven franchisees, but the scam also emerged during other investigations undertaken by the Fair Work Ombudsman. In the most severe cases, employers have threatened to revoke visas and have employees deported if they spoke about the maltreatment.

In terms of what the bill, as currently drafted, actually does, the bill addresses cashback scams by making it clear that it's unlawful for an employer to demand an employee pay a proportion of their wages back. Cashback scams may attract the higher penalties which apply to serious contraventions under the act. The provisions only prohibit unreasonable requests to spend an amount, not legitimate requests for overpayments to be returned, because there may well be legitimate circumstances in which an employer requests that money be paid back to them.

In terms of the amendments that have been moved by the opposition, this amendment would extend the prohibition on unreasonable requirements on employees to spend or pay an amount, which is referred to as the cashback provision, to include requirements made of prospective employees to spend or pay an amount in connection with their prospective employment. The government is opposing Labor's amendment, as moved by Senator Cameron, that extends the prohibition on unreasonable requirements to spend to prospective employees. The effect of the amendment, as it is currently drafted, would extend the cashback prohibition to include requirements for prospective employees to spend or pay an amount in connection with employment.

The government is unable to support this amendment for two reasons: the provisions, as they are currently drafted—and it may just be very bad drafting on behalf of the opposition—are incredibly broad and are more than likely going to lead to unintended consequences; and the unacceptable conduct the amendment is trying to deal with may often already be unlawful under other laws.

In terms of the unintended consequences—and, again, it may just be very bad drafting—there are many reasons why an employer might require a prospective employee to spend an amount of money. Employees, often required to be located near their workplace, may be willing to relocate to take up a job offer. If an employer tells prospective employees about job location requirements, is it reasonable for the worker to ask the employer for their relocation costs? While this might be negotiated between the parties, it would be unreasonable to create a legal requirement around this. What about asking a worker to pay for their own travel costs to attend an interview face to face? Again, this is captured by the amendment that is being moved on behalf of the opposition.

Whilst I'm sympathetic to some of the cases identified by the Melbourne based community legal centre WEstjustice in their Senate committee submission, I also point out that many of these instances that they themselves describe would likely be captured by other existing laws which come with some very serious sanctions. For example, there was the migrant worker who was allegedly asked to pay a $2,500 cash bond for the use of a work vehicle and to access a building site. The job never eventuated, and the prospective employer disappeared. This sort of conduct is, of course, completely, totally and utterly unacceptable, and it is almost certainly an offence under criminal law. I would encourage anyone who believes that they are the victim of this type of theft or fraud to contact the police.

In terms of vulnerable migrant workers paying for a visa outcome: in 2015, under the coalition government, civil and criminal penalties were introduced under the Migration Act for people who ask for, receive, offer or provide a benefit in return for a visa sponsorship or employment that requires a visa sponsorship outcome. These changes came out of a review into the integrity of the 457 visa program that I announced in 2014 when I was the Assistant Minister for Immigration and Border Protection. I also understand that this issue has been raised in the context of 417: working holiday makers spending money in relation to the 88-day regional work requirements in order to secure an extension to their visa. This continues to be a complex issue, and it is one that I will request the Migrant Workers' Taskforce to consider.

Just by way of further background: in March 2016 the Federal Court handed down penalties against a company that offered vulnerable migrant workers training and sponsored employment in the cleaning industry that would supposedly lead to permanent residency. Many of these workers paid in excess of $10,000 each. The court found that the company never had any cleaning jobs available, and, in any event, cleaning jobs would not have met the skill requirements necessary for permanent residency under the relevant visa requirements. I understand that the fines that were handed down were approximately $700,000 for the employer and $300,000 for the director, so that was a total of $1 million in fines.

Again, in terms of the cashback provisions that the bill seeks to address, these types of scams are wrong, and they need to be stopped, and the bill does that. But in terms of the extension of the cashback provision to prospective employees, in particular in the sloppy drafting that has been presented to the Senate, the government cannot support the amendment, because of the very serious unintended consequences by way of the fact that the provisions presented by the opposition are incredibly broad.