Nick Xenophon (SA, Nick Xenophon Team) Share this | Hansard source

No, not from Senator Cameron, but I know from speaking to some small businesses about this that you need to explain to them that the reverse onus would apply only if they have broken the law about the keeping of records in terms of pay, in terms of basic employment records—that is something where I don't know any employer who would not keep records, who would not want to do the right thing. Any responsible employer would keep these records. So in order for the reverse onus to be triggered, it would have to be a situation in which there would be a breach of subsections 535(1), 535(2), 535(3), 536(1) or 536(2) in relation to triggering this particular amendment of Senator Cameron's.

This amendment needs to be seen in the context of what the government has done to significantly increase the penalties for failing to keep records. The opposition says, 'The government isn't fair dinkum about trying to do the right thing by vulnerable workers.' Well, I think the fact that the government is doubling, as I understand it, the penalties for employers who don't keep their pay records, who don't have a proper system of record keeping under the act, shows goodwill on the part of the government to have an environment in place where there is much greater protection for vulnerable workers.

The concern I had about the reverse onus of proof—by the way, just because there is a reverse onus of proof doesn't mean that you cannot disprove that—in the original form of this amendment was that subsection (1) did not apply for failure to comply due to exceptional circumstances beyond the employer's control. I think that is simply too high a hurdle. It is simply too unreasonable. What's been put to me by one person who's run small businesses is there might be circumstances where an employee works a few extra hours and doesn't put in their timesheet as required, and then there's a blue between the employer and the employee. Even though the employer has had a good system of record keeping, it's something beyond that employer's control. Changing it to ensure that there is a safeguard, a safety valve, that it doesn't apply if the employer provides a reasonable excuse—and, again, as Senator Cameron says, it can't be 'The dog ate my homework'—so the concept of reasonableness is brought into it as to why there has not been compliance with subsection 557C(1)(b), I think provides the comfort that fair employers need so they're not caught up in this unnecessarily, but it still does its work to ensure that there ought to be compliance and there ought to be a protection for vulnerable workers in these circumstances.

In other words, if an employer is keeping records, has a system of keeping pay records—as they're required to, because the government knows how important this is, with significantly increased penalties for failing to keep records—then the employer would not be subject to this reverse onus of proof. But if you have an employer where there is no record keeping, there's no system of records as to who's working when, then the reverse onus of proof would apply, but there would still be the safeguard that if there's a reasonable excuse then it would not apply. I think this strikes that delicate balance and enhances the legislation. I support this amendment. I think it is quite reasonable in the circumstances, with this additional safeguard of reasonable excuse, for this amendment to pass.