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

And Senator Cameron is correct: this was previously moved and discussed the last time this bill was before the Senate. The government continues with its objections to this particular amendment. We do acknowledge that the opposition has, however, taken into consideration some of the issues that were raised in debate the last time we met in this place. I do note, for example, they have now added, at clause (viii), 'the coercion of an employee by an employer', and certainly that was one of the issues that were raised by the government in terms of our opposition to this particular amendment.

The issue we still have, though, for the record, is that the Labor Party, or the opposition, is still proposing to limit the Fair Work Ombudsman's powers. The government maintains that, in a very basic form, this is bad law. What you're actually seeing by this amendment is that the list of powers that the Fair Work Ombudsman is able to exercise is incomplete, it is fragmented, and quite frankly, if passed today, is a lawyers' feast in terms of technical and potentially time-wasting objections by recalcitrant employers in underpayment cases. There is no mention of non-monetary entitlements or adverse action generally. It would obviously assist in making this amendment better—in the event that Senator Xenophon is prepared to support the opposition's amendment—if non-monetary entitlements and adverse action were added to the opposition's amendments. It might be that Senator Xenophon is proposing to do that, but we will have to wait and see.

Again, in terms of the Fair Work Ombudsman's powers and the opposition's amendment, what the Labor Party effectively want to do is to tie the hands of the Fair Work Ombudsman, which is a little ironic, considering the Fair Work Ombudsman was appointed by the Labor Party to enforce the laws that the Labor Party themselves introduced when they were last in government. Under the proposed amendment, the ombudsman would have additional powers to seek evidence from witnesses, but only in relation to the subset of breaches of the act—which, again, is a Labor Party act. So the opposition are actually seeking to limit the scope of the Fair Work Ombudsman's investigating powers that they themselves created the last time they were in government.

In terms of the concerns that the government has—and, again, Senator Xenophon may well address some of these concerns when he stands to address the amendment—the proposed amendment means that the Fair Work Ombudsman would not be able to conduct examinations under the new provision to obtain evidence they cannot otherwise get. And we do need to remember that. These powers can only be exercised in the event that the Fair Work Ombudsman has not been able to get the information in the normal course of events. They are in relation to a wide range of unlawful behaviour, including record-keeping failings, false records, adverse action, coercion other than coercion of an employee by an employer, undue influence or pressure, misrepresentation of workplace rights, sham contracting, non-monetary breaches of industrial awards or agreements, and not complying with Fair Work Commission orders. For example, if an employer fails to pay an employee's unfair dismissal compensation, this will not be able to be investigated by the Fair Work Ombudsman.

What I've just read out is the type of conduct that was seen in the 7-Eleven scandal, where vulnerable workers were threatened if they complained about their wages, and franchisees systematically falsified record-keeping systems. This is the big issue. In terms of limiting the powers, effectively what we're saying is that 7-Eleven, should they go down the course of action that they've previously gone down, will continue to get away with that behaviour because the parliament itself has said that it is going to limit the powers of the Fair Work Ombudsman to take into account only a very small subset. In particular in relation to record-keeping failings, false records, adverse action and coercion, the government believes that these do need to be included because otherwise the law is deficient.

Given that I did address this the last time that we were here and that the government's position is clearly articulated in the Hansard, for the time being I'll leave my comments at that and listen very carefully to what Senator Xenophon has to say.