Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Hansard source

by leave—I move opposition amendments (40) and (41) on sheet 8144 together:

(40) Schedule 1, item 57, page 32 (after line 13), at the end of Part 4, add:

24A Application of amendments—presumption where records not provided

Section 557C of the amended Act applies in relation to contraventions of civil remedy provisions that occur after the commencement of this Part.

(41) Schedule 1, page 32 (after line 13), at the end of the Schedule, add:

Part 8—Records

Fair Work Act 2009

1 At the end of subsection 535(3)

Add:

Note: If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.

2 Subsection 536(2) (note)

Omit "Note", substitute "Note 1".

3 At the end of subsection 536(2)

Add:

Note 2: If an employer fails to comply with subsection (1) or (2), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.

4 Before section 558

Insert:

557C Presumption where records not provided

(1) If:

(a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and

(b) the employer was required:

  (i) by subsection 535(1) or (2) to make and keep a record; or

  (ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or

  (iii) by subsection 536(1) or (2) to give a pay slip;

in relation to the matter; and

(c) the employer failed to comply with the requirement;

the employer has the burden of disproving the allegation.

(2) Subsection (1) does not apply if the failure to comply was due to exceptional circumstances beyond the employer's control.

(3) 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 or pay amounts);

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

by leave—I move an amendment to amendment (41) on sheet 8144:

That amendment 41 on shee t 8144 be amended by omitting " the failure to comply was due to exceptional circumstances beyond the employer's control " from proposed clause 557C(2) on page 12 and substituting " the employer provides a reasonable excuse as to why there has not been complian ce with subsection 557C(1)(b)" .

The CHAIR: Senator Cameron, could we have a copy of that, rather than asking you to repeat it. And it needs to be signed before you hand it to us. Thank you. Please continue.

I appreciate the opportunity to amend that original amendment. This goes to the issue that has had some debate in this place prior to this bill, and that is the importance of ensuring that there are pay slips provided to an employee by the employer. We have had speeches from Senator Cash about how important this is. We have had speeches about workers not being given their appropriate pay slips. What we are concerned about is that employers can hide behind a proposition that no pay slips have been provided, but then the onus comes on the exploited worker to prove that they have not had an appropriate payment.

We don't believe that where an employer has failed to deliver on what is an obligation under the existing act to provide a pay slip there should be any impediments put before an employee to actually prove that they haven't been paid. It really is a problem created by the employer in not providing a pay slip, which is their legal obligation to provide, and then hiding behind that and indicating to a worker that the worker needs to provide the proof. We understand that you don't reverse the onus of proof easily, but when an employer is breaching the act as it stands then there is, in my view, an obligation on parliament to make sure that that employee doesn't have unnecessary hurdles to jump before they can undertake a case to get what is their legitimate right. If an employer is not complying by providing a pay slip then there should be a reverse onus of proof.

In our original amendment, we had the proposition:

Subsection (1) does not apply if the failure to comply was due to exceptional circumstances beyond the employer's control.

But, following discussions with Senator Xenophon, we are prepared to take out 'exceptional' and substitute 'the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b)'. It still would be up to the employer to indicate what circumstances were beyond the employer's control.

We are of the view that, provided the employer has a reasonable excuse as to why there has not been compliance, that's a case they can argue—they can argue what that reasonable excuse is. Obviously, the Fair Work Commission can deal with that by hearing the arguments and making a determination. But in my view a reasonable excuse would still have to be a good excuse. You just can't have an employer saying, 'Well, you know, the dog ate my homework.' You just cannot do that. There has to be a clear and unequivocal but reasonable excuse as to why they haven't complied with their legal obligations.

Remember, what we are talking about here are workers who are in a vulnerable situation. That was the name that Senator Cash came up with for the bill. The bill is the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017. It is not a bill to protect incompetent employers. It is not a bill to protect employers trying to rip workers off. It is not a bill to protect the rights of companies like 7-Eleven and Caltex, who egregiously turned a blind eye to the rip-offs that were taking place. This is about protecting vulnerable workers, so there has to be a reasonable excuse as to why there has not been compliance. That excuse, obviously, would have to meet the judgement either of a court or of the Fair Work Commission.

So it just cannot be a proposition that an employer does not comply with the law. There have been any number of speeches in here about the need to provide a pay slip to a worker. The pay slip is absolutely essential for a worker to know they have been paid for the hours they have worked, that penalty rates are being paid, and that superannuation is being paid. We have seen some recent analysis that billions of dollars of superannuation has not been paid to workers in this country. In the last session, I think, Senator Cash did bring further changes to pay slips and the requirement to provide pay slips. This is consistent with that approach. You must have a pay slip; you just can't argue that for some obscure reason no pay slip was provided. A pay slip cannot be just a scribbled note saying, 'I've paid you $300', or $400. A pay slip has to actually deal with all the obligations the employer has in relation to that worker.

So, we are very clear that this is another protection for vulnerable workers, by having a reverse onus of proof. In actually bringing a case against a powerful employer—an employer who has all the facts, an employer who may have been exploiting the worker—the worker may have some difficulties if they don't have a pay slip. So, the employer has an obligation under law to provide the pay slip, and you can't have noncompliance with legal obligations making it harder for a vulnerable worker, a worker in an exposed position, to actually make a claim for their rights under the law and their rights to get paid for what they've worked. A 'reasonable excuse' has to be reasonable, and the employee cannot be put in a position with the employer because of an omission, either deliberate or non-deliberate, by the employer, where they cannot get a fair day's pay for a fair day's work.

So we believe this is an important proposition. We think it's consistent with the thinking that this parliament has had in the past about the need to supply a pay slip. Employees are entitled to know that they're being paid for the work they've done. Employers have responsibilities to provide pay slips to employees. On that basis, the amendment we are proposing is important, but we are prepared to accept that if a reasonable excuse is what can be put forward then it has to be determined whether that excuse is reasonable or not. I will leave it at that.