Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering the Fair Work Amendment (Protecting Vulnerable Workers) Bill, and the question is that amendment (21), amendments (24) to (27) and amendment (35) on sheet 8144 moved by Senator Cameron be agreed to.

(Quorum formed)

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

To recap where we were up to, we were dealing with amendments (21), (24) to (27) and (35) on sheet 8144.

The TEMPORARY CHAIR: Minister?

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

Could I just confirm, Chair, that these are the amendments in relation to prospective employees and the application of the cashback provision.

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

These go to extending the application of the prohibition of unreasonable demands for money by employers to prospective employees. Yes. There was a bit of discussion, and some questions were put to me by Senator Xenophon, on how this would work, and there were some concerns that it may be a problem for some businesses.

We had some submissions to the inquiry, and I think the submission that was important, in terms of this issue of the unreasonable demands made to prospective employees, came from WEstjustice. I draw Senator Xenophon's attention to that submission. I will just take you through some of the issues that WEstjustice raised in relation to this very issue. The submission says this:

In addition to traditional underpayment or non-payment of wages and 'cash-back' schemes requiring unreasonable payments to an employer, WEstjustice has recently seen the emergence of employers claiming to be able to offer work in return for a vulnerable worker paying them an initial upfront fee and/or expending money on vehicles or equipment. In most circumstances, the job never eventuates and the vulnerable workers are left with the difficult task of trying to recover their funds.

There were a couple of case studies, and one was Dugung's. It says:

Dugung paid $10,500 to his employer for training to become a cleaner. He was told he would complete 10 days of training and once training was complete, that he would start work. He was promised a weekly income of $2600.

After 10 days of training, Dugung was told that he did not have a job as there was not enough work for him. His boss made two refund payments to him, one of $4500 and one of $3000. When Dugung asked for the remaining $3000 he was told that this money had been deducted for training costs.

Dugung was not paid for his training and came to see Western CLC for advice on getting his money back.

The next case study was Tanvir's. It says:

Tanvir found an advertisement for plastering work on a popular trading website. The employer told him he would need to pay $2500 as bond for the work vehicle and to the access for the building site. Tanir met the employer and paid the $2500 in cash. The employer told him he would get the contract on his first day of work.

After a week, Tanvir had still had not heard from the employer so he called him a number of times. The employer did not respond at all and has now disappeared.

The employer disappeared with this poor potential employee's $2½ thousand. Quan was another one they indicated:

Quan was working as a courier. He was offered work but he was told he was required to pay $15,000 to the employer for a "run" (opportunity to work). Quan signed a contract which guaranteed $2000 per week income. Quan paid the $15,000 and signed the contract. However, the employer only paid him about $1000 per week and he was still owed $5000 in wages.

After a lawyer assisted Quan to draft a letter of demand for both the unpaid wages and the $15,000 he had paid for the work, the employer gave him a cheque for $15,000; however when Quan banked the cheque it was dishonoured. The employer then began repaying the debt by installments, however this too stopped after two installments.

My view is that these are the tip of the iceberg out there. As per this submission to the inquiry, they say reforms are needed to assist employees or prospective employees in this situation and to deter this kind of behaviour from employers.

This is just one legal firm who are looking after some migrant workers and workers who are being exploited, and these are the issues that it is raising. That's why Labor is of the view that the amendments we are putting forward, to extend the application of this prohibition of unreasonable demands for money by an employer, should be expanded to prospective employees. These are the practical examples we're trying to deal with, and, Senator Xenophon, if I'm correct, your concern was that it might be onerous and too wideranging. That's not the view of the people in these legal services that are dealing with some of the most exploited workers in the country. We would ask you and all of the crossbench to turn your minds to this issue: the principle that once you are an employee you can get some protection, but if you're a prospective employee then it's open slather on you by an unjust employer and they can steal money from you. This is the appropriate place to deal with it because the principle is the same. It's only a question of timing whether you're a prospective employee or employer. Senator Xenophon, that's the issue and some of the examples that you asked for.

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

Thank you to Senator Cameron for setting out those case studies, which I found very useful. I would like to indicate to Senator Cameron and to the government that, on balance, I think this is a good and beneficial amendment. The examples that Senator Cameron gave cannot be ignored. I have concerns about some of the other amendments, about their practicality and workability, but I think this amendment is a good one in respect of prospective employees. There is a safeguard in respect of the test for reasonableness.

I have only one caveat, and I just want to put on the record so that there is no misunderstanding, Senator Cameron. My colleagues and I will support this amendment, but if the government says that there is some technical drafting issue that needs to be addressed, and it's an issue that Senator Cameron is satisfied is a technical drafting issue, then we reserve the right to revisit it. That's not to reflect in any way on the drafting as it exists, but I think it's a reasonable approach. I say this respectfully to Senator Cameron. The drafting seems fine to me. If there is some issue that may not allow the legislation and the amendment to work as intended by Senator Cameron, I'd like to think Senator Cameron would be open to that. So I say, in the genuine spirit of getting this amendment through, that we support it. I think Senator Cameron acknowledges the spirit in which I'm putting that. I think that Senator Cameron, despite our fierce and vigorous debates on some issues and the fierce and vigorous agreement we have on others, knows in his heart of hearts that we will work constructively with him if there is some technical issue with respect to the amendment. In that spirit, we support this amendment.

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

Can I just indicate, not on behalf of myself but on behalf of the opposition, that we recognise those caveats that you've put up. We are confident in the drafting. The drafting has been done by very competent officers of the Senate, and we've got a lot of faith in their approach on this. So on that basis, yes, we accept what you're putting forward, and we welcome your support to widen that protection to these people who are being ripped off and having their money stolen.

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

Just very briefly: I would be mortified if there were any suggestion that the drafting by the officers of the Senate, who do a fantastic job, was anything other than impeccable. It was only if there were some unintended consequence. It is not a reflection on the drafting, but that is a policy issue that has arisen. I think the minister wants me to sit down and shut up, but I just want to say that the drafting is impeccable. It's a question of whether there were any additional matters that might be dealt with from a policy point of view.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendments (21), (24) to (27) and (35) on sheet 8144, moved by Senator Cameron, be agreed to.

Question agreed to.

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

I seek leave to move amendments (28) to (34) and (39) together.

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

Some of the numbers that I have are slightly different. Can I just confirm with Senator Cameron that these amendments are in relation to—and I'll put it into my own language—additional safeguards for the FWO notice process and limits on the use of the powers of the FWO to wage related contraventions?

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

Yes, I just confirm that.

Leave granted.

I move:

(28) Schedule 1, item 27, page 17 (before line 5), before the definition of FWO notice, insert:

  AAT presidential member means a person who is a presidential member of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.

  Commonwealth Ombudsman means the person for the time being holding office as Ombudsman under the Ombudsman Act 1976.

(29) Schedule 1, item 30, page 17 (lines 19 to 22), omit paragraphs 683(1B)(a) and (b), substitute:

  (a) the power under subsection 712AA(1) to apply for the issue of an FWO notice; and

  (b) the power under subsection 712AD(1) to give an FWO notice; and

  (c) the power under subsections 712AD(3) and (4) to give notice of a later time.

(30) Schedule 1, item 35, page 18 (lines 17 and 18), omit subsection 703(2), substitute:

(2) To avoid doubt, the power to apply for the issue of an FWO notice under section 712AA and the power to give an FWO notice under section 712AD are not compliance powers.

(31) Schedule 1, item 38, page 19 (line 1) to page 20 (line 13), omit section 712A, substitute:

712A Minister may nominate AAT presidential members to issue FWO notices

(1) The Minister may, by writing, nominate an AAT presidential member to issue written notices (FWO notices) under section 712AB.

(2) The Minister may nominate an AAT presidential member who is a Judge to issue FWO notices under section 712AB only if the Judge has consented, by writing, to the nomination.

(3) A nomination ceases to have effect if:

  (a) the nominated AAT presidential member ceases to be an AAT presidential member; or

  (b) the Minister, by writing, withdraws the nomination.

(4) A nominated AAT presidential member has, in performing a function of or connected with issuing an FWO notice under this Subdivision, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

712AA Fair Work Ombudsman may apply to nominated AAT presidential member for FWO notice

General requirements

(1) The Fair Work Ombudsman may apply, in writing, to a nominated AAT presidential member for the issue of an FWO notice referred to in subsection (2) if the Fair Work Ombudsman believes on reasonable grounds that a person:

  (a) has information or documents relevant to an investigation by an inspector into a suspected contravention of a provision of this Act, a fair work instrument or a safety net contractual entitlement that relates, directly or indirectly, to:

     (i) the underpayment of wages, or other monetary entitlements, of employees; or

     (ii) the unreasonable deduction of amounts from amounts owed to employees; or

     (iii) the placing of unreasonable requirements on employees to spend or pay amounts paid, or payable, to employees; or

  (b) is capable of giving evidence that is relevant to such an investigation.

(2) The FWO notice may require the person:

  (a) to give information to the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman; or

  (b) to produce documents to the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman; or

  (c) to attend before the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman who is an SES employee or an acting SES employee, and answer questions relevant to the investigation.

Form and content of application

(3) An application for an FWO notice must:

  (a) if a form is prescribed by the regulations—be in that form; and

  (b) include any information prescribed by the regulations.

(4) An application for an FWO notice must not relate to more than one person, but may relate to more than one investigation.

Application must be accompanied by affidavit

(5) An application for an FWO notice must be accompanied by an affidavit by the Fair Work Ombudsman including the following:

  (a) the name of the person to whom the application relates;

  (b) details of the investigation (or investigations) to which the application relates;

  (c) the grounds on which the Fair Work Ombudsman believes the person has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations) referred to in paragraph (b);

  (d) details of other methods used to attempt to obtain the information, documents or evidence;

  (e) the number (if any) of previous applications for an FWO notice that the Fair Work Ombudsman has made in relation to the person in respect of the investigation (or investigations) referred to in paragraph (b);

  (f) information about whether the Fair Work Ombudsman has made, or expects to make, any other applications for an FWO notice in relation to the investigation (or investigations) referred to in paragraph (b) and, if so, the persons to whom those applications relate.

Further information

(6) A nominated AAT presidential member to whom an application for an FWO notice is made may request the Fair Work Ombudsman to give the presidential member further information in relation to the application.

(7) If a request for further information is made under subsection (6), the Fair Work Ombudsman must give the further information in writing as soon as practicable after receiving the request.

712AB Issue of FWO notice

(1) A nominated AAT presidential member to whom an application for an FWO notice has been made must issue the FWO notice if the presidential member is satisfied of the following:

  (a) that an inspector has commenced the investigation (or investigations) to which the application relates;

  (b) that there are reasonable grounds to believe that the person to whom the application relates has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations);

  (c) that any other method of obtaining the information, documents or evidence:

     (i) has been attempted and has been unsuccessful; or

     (ii) is not appropriate;

  (d) that the information, documents or evidence would be likely to be of assistance in the investigation (or investigations);

  (e) that, having regard to all the circumstances, it would be appropriate to issue the FWO notice;

  (f) any other matter prescribed by the regulations.

(2) A nominated AAT presidential member must not issue an FWO notice except in the circumstances referred to in subsection (1).

(3) An FWO notice must not be issued in relation to more than one person, but may be issued in relation to more than one investigation.

(4) If:

  (a) an application for an FWO notice is made in relation to more than one investigation; and

  (b) the nominated AAT presidential member to whom the application is made is not satisfied of the matters referred to in subsection (1) in relation to each of those investigations;

the nominated AAT presidential member must issue the FWO notice in relation to the investigation (or investigations) in relation to which the nominated AAT presidential member is satisfied of the matters referred to in subsection (1).

712AC Form and content of FWO notice

     An FWO notice must:

  (a) if a form is prescribed by the regulations—be in that form; and

  (b) if the notice requires a person to give information under paragraph 712AA(2)(a)—specify the time by which, and the manner and form in which, the information is to be given; and

  (c) if the notice requires a person to produce documents under paragraph 712AA(2)(b)—specify the time by which, and the manner in which, the documents are to be produced; and

  (d) if the notice requires a person to attend to answer questions relevant to an investigation—specify the time and place for the attendance; and

  (e) be signed by the nominated AAT presidential member who issued it; and

  (f) include any other information prescribed by the regulations.

712AD Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued and vary time for compliance

Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued

(1) If a nominated AAT presidential member issues an FWO notice, the Fair Work Ombudsman may give the notice to the person in relation to whom it is issued.

(2) If an FWO notice is not given to the person in relation to whom it is issued within 3 months after the day on which it was issued, the notice ceases to have effect at the end of that period.

Variation of time for compliance with FWO notice

(3) If:

  (a) the Fair Work Ombudsman gives an FWO notice to a person under subsection (1); and

  (b) the time specified in the notice under paragraph 712AC(b), (c) or (d) is not at least 14 days after the notice is given to the person;

the Fair Work Ombudsman must, at the same time as the FWO notice is given to the person, also give notice to the person of a time later than the time specified in the notice.

(4) The Fair Work Ombudsman may, at any time after giving an FWO notice to the person in relation to whom it is issued, give notice to the person of a time later than the time:

  (a) specified in the notice under paragraph 712AC(b), (c) or (d); or

  (b) notified under subsection (3).

(5) A later time notified under subsection (3) or (4) must be at least 14 days after the FWO notice is given to the person.

(6) If the person is notified of a later time under subsection (3) or (4), the FWO notice has effect as if the later time (or the latest of those times) were the time specified in the FWO notice.

712AE Conduct of examination

Legal representation

(1) A person attending before the Fair Work Ombudsman, or a member of the staff mentioned in paragraph 712AA(2)(c), may be represented by a lawyer if the person chooses.

Oath or affirmation

(2) The Fair Work Ombudsman, or a member of the staff mentioned in paragraph 712AA(2)(c), may require the information or answers to be verified by, or given on, oath or affirmation, and either orally or in writing. For that purpose, the Fair Work Ombudsman, or any member of the staff of the Office of the Fair Work Ombudsman, may administer the oath or affirmation.

(3) The oath or affirmation is an oath or affirmation that the information or answers are or will be true.

(32) Schedule 1, item 38, page 20 (line 21), omit "712A(5)", substitute "712AE(2)".

(33) Schedule 1, item 38, page 21 (after line 19), after section 712D, insert:

712E Fair Work Ombudsman must notify Commonwealth Ombudsman of issue of FWO notice

(1) As soon as practicable after an FWO notice has been issued, the Fair Work Ombudsman must:

  (a) notify the Commonwealth Ombudsman that the FWO notice has been issued; and

  (b) give the Commonwealth Ombudsman a copy of:

     (i) the FWO notice; and

     (ii) the affidavit that accompanied the application for the FWO notice; and

     (iii) any other information in relation to the FWO notice that was given to the nominated AAT presidential member who issued the notice.

(2) If notice under subsection 712AD(3) or (4) is given to a person, the Fair Work Ombudsman must notify the Commonwealth Ombudsman as soon as practicable after giving notice.

712F Review and report by Commonwealth Ombudsman

Fair Work Ombudsman to give report etc. to Commonwealth Ombudsman

(1) As soon as practicable after an examination of a person under paragraph 712AA(2)(c) is completed, the Fair Work Ombudsman must give the Commonwealth Ombudsman:

  (a) a report about the examination; and

  (b) a video recording of the examination; and

  (c) a transcript of the examination.

(2) The report under paragraph (1)(a) must include:

  (a) a copy of the FWO notice under which the examination was conducted; and

  (b) the following information:

     (i) the time and place at which the examination was conducted;

     (ii) the name of each person who was present at the examination;

     (iii) any other information prescribed by the rules.

Review of exercise of powers under this Subdivision

(3) The Commonwealth Ombudsman:

  (a) must review the exercise of powers under this Subdivision by the Fair Work Ombudsman and any member of the staff of the Office of the Fair Work Ombudsman; and

  (b) may do anything incidental or conducive to the performance of that function.

(4) The Commonwealth Ombudsman's powers under the Ombudsman Act 1976 extend to a review by the Ombudsman under this section as if the review were an investigation by the Ombudsman under that Act.

(5) The exercise of those powers in relation to a review by the Ombudsman under this section is taken, for all purposes, to be an exercise of powers under the Ombudsman Act 1976.

Commonwealth Ombudsman to report to Parliament

(6) As soon as practicable after the end of each quarter of each financial year, the Commonwealth Ombudsman must prepare and present to the Parliament a report about examinations conducted during that quarter. The report must include the results of reviews conducted under this section during that quarter.

(7) The Commonwealth Ombudsman may prepare and present to the Parliament any other reports about the results of reviews conducted under this section the Commonwealth Ombudsman considers appropriate.

(34) Schedule 1, item 56, page 28 (line 11), omit "712A(2)", substitute "712AA(2)".

(39) Schedule 1, item 57, page 31 (line 31), omit "712D", substitute "712F".

These amendments are in relation to doing the same as was done for the ABCC, and that is to have Administrative Appeals Tribunal oversight and ombudsman oversight of the compulsory questioning powers and ensure that they are used for investigations into exploitation of vulnerable workers.

Stakeholders from business and from unions made submissions to the Senate committee inquiry, raising concerns about the lack of oversight in the bill for the proposed new Fair Work Ombudsman compulsory questioning powers. Every senator here, I think, would be well aware of the debates that took place in relation to the requirement for oversight in the ABCC.

While Labor support giving the Fair Work Ombudsman the powers necessary to prevent, uncover and prosecute the exploitation and underpayment of vulnerable workers, we are also concerned that these powers are exercised appropriately. When the Senate debated the ABCC legislation recently, it ensured that the compulsory questioning powers to be granted to the ABCC were subject to oversight by the AAT and the Commonwealth Ombudsman. These amendments put the same oversight procedure into the proposed Fair Work Ombudsman compulsory questioning power contained in the bill.

The Fair Work Ombudsman gave evidence to the Senate that these powers would enhance her ability to investigate and prosecute serious and systemic exploitation of workers such as that carried out by 7-Eleven. The explanatory memorandum made it clear that the purpose of the coercive powers was to strengthen 'the evidence-gathering powers of the Fair Work Ombudsman to ensure that the exploitation of vulnerable workers can be effectively investigated'. All of the government's public statements have described the bill as introducing better investigatory powers relating to the exploitation of vulnerable workers. We take the view that limiting the use of the proposed coercive powers to investigations into underpayment of wages and allowances is consistent with the position that coercive powers should be used sparingly and only where justified.

These amendments require the Fair Work Ombudsman to apply to the AAT for a notice to compel a person for questioning; require the AAT to be satisfied that there are reasonable grounds to believe the person has relevant information and that other methods of obtaining that information have been unsuccessful or are not appropriate; and give the Commonwealth Ombudsman review and reporting responsibilities. They will ensure the coercive powers are used only for the intended purpose: to facilitate investigations into the exploitation of vulnerable workers, specifically the underpayment of their wages and entitlements.

In relation to our concerns, we have got some legitimate reasons to be raising this. Remember when the ABCC was introduced, and the ABCC under the act that passed parliament had responsibility to ensure that it behaved appropriately and fairly and that it dealt with issues of exploitation and breaches of the act in relation to workers, their wages and their entitlements. I asked a question on this issue to the Department of Employment—I asked the question on 30 May 2017, on proof Hansard page 107—and I received a response in relation to the question. I asked Mr Hadgkiss—it was about a mandate from parliament—and he said, 'When I took over, it was what the government of the day directed me.' So I said, 'When you took over—the mandate not to deal?' Mr Hadgkiss interrupted and said, 'To concentrate on what was termed core business.' I'm sure senators are aware of this debate. So I said, 'So the mandate came from the government, not you?' And Mr Hadgkiss said, 'It was a direction from the minister of the day—yes.' I said, 'That was Minister Abetz wasn't it?' Mr Hadgkiss said, 'Yes,' then I said, 'Was that a written direction?' He said, 'I'll take it on notice.' I asked for him to provide copies of the written direction. And, I received an answer to that question and the answer was this: 'On 12 November 2013, the director of Fair Work Building and Construction—FWBC—and the Fair Work Ombudsman received an email from the Office of the Senator the Hon. Eric Abetz—the then Minister for Employment—advising that the Prime Minister had requested that wages compliance functions held by the FWBC be transferred to the Fair Work Ombudsman. The email advised that the Minister for Employment would write to the Fair Work Building Commission director and the Fair Work Ombudsman to formally request this transfer of functions occur. A copy of the email is attached.' There's an email—who it's from is redacted—but it was sent to Mr Nigel Hadgkiss, and it's headlined 'sensitive'. I'm not surprised. It says: 'Dear director and ombudsman, the minister has received correspondence this morning from the Prime Minister asking that wages compliance functions held by the FWBC be transferred to the Fair Work Ombudsman as a matter of urgency.' It says: 'We have asked for this to occur in the past, but given the PM's interest in this, the minister has asked that this be advanced as rapidly as possible. Minister Abetz will write to you both later today/tonight formally requesting this to occur as a high priority. Happy to discuss.' It's signed by one of Senator Abetz's advisers—and that name is redacted.

This goes exactly to the issue here. This coalition government is absolutely obsessed with the trade union movement in this country. The minister is particularly obsessed with the trade union movement in this country. The coalition moved bill after bill in this place to restrict the capacity of the trade union movement to operate effectively and fairly. The minister has continually attacked the trade union movement in this country. And we are concerned that, given the history of the coalition and this minister and their contempt for the legal rights of the trade union movement to operate effectively, this is simply another Trojan Horse to attack the wages and conditions of workers in this country.

We find again the Prime Minister writing to the minister to change how an organisation operates, to diminish their effectiveness in looking after workers, so that resources could be transferred to the then Fair Work Building and Construction to attack the trade union movement. That's the history of this government. This government has no credibility when it comes to looking after working people. You know the history of Work Choices. You know the history of royal commissions being run against their political opponents. You know the history of the legislation that's come in here time and time again. So we are concerned that this Trojan Horse that they've put up will simply be another attack on the union movement operating fairly, effectively and legally. And that's why we do not support a proposition that is inconsistent with the submissions that the Fair Work Ombudsman made, inconsistent with the submissions that have been received by the inquiry and inconsistent with the public statements of the minister and the government in relation to what this part of this bill does.

It was never proposed that this bill should be used to attack the trade union movement. It was never proposed that it should do any more than protect vulnerable workers. You need only look at the name of the bill to understand what this is about. But given the history and what happened with Senator Abetz and the then PM Tony Abbott, we have grave and legitimate concerns that this should not be widened past what it was publicly asserted the bill would do and what the submissions to the inquiry have said the bill is about. We've a range of amendments that deal with this.

In the inquiry, as I've indicated, a number of submissions were made, including from Mr Michael Campbell, the Deputy Fair Work Ombudsman. He said:

We would not reach to use this [strengthened evidence-gathering power] at the commencement of an investigation.

He goes on to say:

This is something that is going to assist us in the most difficult and complex cases, where witnesses are unwilling to work with us for fear of retribution or some other feature, where you can see within a company that there is an attitude to noncompliance which is getting to a point where managers are refusing to talk to us because there is some pressure being put on them by the directors of the company, or where the directors of a company are choosing not to involve themselves in our investigations. This is to crack the hardest of nuts, and we have seen plenty of those cases over the last 12 months

So the Deputy Fair Work Ombudsman is saying he has seen plenty of these cases over the last few months and has outlined what they are about. He said the conduct was deliberate for serious contraventions. We have a concern that this will be widened and it should not be widened. The proof of the pudding is in the eating. You only need to look at what this government did when it previously had the opportunity to attack workers' rights to have access to a trade union, so we are concerned about this.

Labor would ask the crossbench and the Greens to support this proposition because this is a proposition that is fundamental to ensuring that what has been proposed by the government is implemented but no more, and to protect the trade union movement in this country from further ideological attacks by this minister and this government. If the crossbench concede this point then they will be going far further than this bill was publicly asserted it was supposed to do. This is consistent with the rhetoric of the government, it's consistent with the bill and it is consistent with the proposals that were put up publicly by the minister. We are of the view this is a very important—fundamental—part of this bill. It needs to be amended, and we will be asking support for our amendments.

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

These amendments will insert AAT presidential member and Commonwealth Ombudsman oversight for the FWO notice process and would limit the proposed new information-gathering powers to wage related contraventions. The government will be opposing Labor's amendments to the Fair Work Ombudsman's new investigative powers as detailed in items 28 through 34, and item 39. The government does support, however, the additional oversight mechanism to the new Fair Work Ombudsman notice process but will not support those powers being limited in the way proposed by these amendments.

The Fair Work Ombudsman is the regulator, as we know, responsible for enforcing the Fair Work Act. And the point I make in relation to the Fair Work Act is that this is actually Labor's piece of legislation. The Fair Work Ombudsman is responsible for enforcing the act that the Labor Party, when in government, brought into force. What the opposition wants to do by moving this amendment is actually turn off its powers in relation to enforcement of the Fair Work Act. If Labor's amendments were supported, the Fair Work Ombudsman would actually have its hands tied when investigating an unfair dismissal claim against an employer or even a bullying claim. A hostile employer would be able to argue that the powers do not apply to them and then use litigation to avoid the ombudsman properly investigating their mistreatment of workers. The government will be supporting the more measured amendments moved by Senator Xenophon in relation to the oversight provisions of the AAT.

The compliance role and the enforcement role of the Fair Work Ombudsman is much broader than underpayments and it is critical that all aspects of Australian workplace laws that have been put in place—the act is Labor's act—are enforceable and they are enforced. The restrictions that Labor want to put on the Fair Work Ombudsman's new investigative powers will fragment the regulator's capacity to address serious issues of noncompliance under the Fair Work Act and to obtain evidence that inspectors cannot obtain by other lawful means.

For example, Labor's amendment limits the power of the Fair Work Ombudsman to apply for a notice to examine witnesses to only those investigations relating directly or indirectly to wage related contraventions. This means that the Fair Work Ombudsman would be unable to expressly obtain information or evidence that cannot be obtained via other means for a large number of breaches of the act, including important protections like discrimination, coercion, conduct in terms of false records, unprotected industrial action, accessorial liability, unfair dismissal, bullying claims and some of the most serious conduct—which we have seen in the 7-Eleven investigations—involving employers failing to keep proper records or, worse, deliberately falsifying the records.

Well-resourced parties, including those engaging in exploitative practices the bill intends to address, could tie up the resources of the Fair Work Ombudsman in protracted and expensive legal arguments about the jurisdictional basis for issuing a notice, the way the power is exercised in any interview or requirement to give any information and the admissibility of any evidence relating to other contravention types. This will not address exploitative conduct or assist vulnerable workers. It will merely give well-resourced operators the opportunity to wriggle out of their responsibilities, and that is not what the bill seeks to do. Again, if Labor's amendments are supported, the Fair Work Ombudsman will effectively have their hands tied when investigating an unfair dismissal claim against an employer or even a bullying claim. That does not assist the workers.

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

Well, where do you start on this? An argument that we don't support oversight is just another overreach by a government that has been overreaching every minute of this week. To argue that the government won't support the amendments because it turns off the Fair Work Ombudsman's powers for enforcement is an absolute nonsense, and it would not tie the hands of the ombudsman. These are just assertions that are being made up on the run by this minister. I know the minister has read every one of them and I note she's consulted on this issue, but it's clear that this is being made up on the run. This bill was not to deal with industrial action. There has been not one argument put by the department and not one argument put by the minister in the public arena that this was required to deal with industrial action. The name of the bill is 'Protecting Vulnerable Workers Bill,' and the government has stood up and argued this is about protecting vulnerable workers. If you really want to protect vulnerable workers, then these amendments are amendments that focus the bill on the vulnerable workers issue.

I'll put to you, Minister, that if you're concerned about unfair dismissal and bullying not being covered by this, we would be happy to make additions to our amendment to cover unfair dismissal and bullying. Why wouldn't we? We would do that. That's the argument you've raised. And we want to deal with that argument, so we would put to the crossbench that we add unfair dismissal and bullying. That would mean we would support the oversight. We would not turn off the powers. But we would limit the powers to what this bill was proposed to do, and that is to protect vulnerable workers, not to be another battering ram of ideological oppression from this minister and this government against workers' unions in this country.

If anyone on the crossbench supports this, that's exactly what you'll be doing. The minister didn't send the department down to the inquiry to say, 'Well, this isn't just about protecting vulnerable workers; actually, we want this to deal with industrial action.' That was never put, and it's only now, at the last minute, that the minister is raising this issue. We knew what the minister was really about, and that's why these amendments were drafted in the way they were: to ensure that we actually protect vulnerable workers and don't create another impediment to unions operating freely and fairly in this country. The Reserve Bank has said that workers should get out and make wage claims because of the problem of stagnating wages for the economy. This will be another barrier to workers getting out and making proper, effective claims and having decent enterprise bargaining in this country.

The minister has given up right now what she's all about: she has an ideological obsession with unions. The government has an ideological obsession with the trade union movement. This is not about protecting vulnerable workers. And I put it to you, Senator Xenophon, that, if we add unfair dismissal and bullying, it covers the arguments the minister has put up but restricts the minister from doing what former Minister Abetz did, which was to use a government organisation to attack the trade union movement. So that's where we're at with this. The minister has just opened up this Pandora's box as to what this really is about. It's not about protecting vulnerable workers. It's another attack on the trade union movement.

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

I might do something a little bit unorthodox and a bit unfashionable—refer to the actual wording of the amendment and work through that. I know it's a bit boring, but I think we need to work through that. I've got some questions to ask Senator Cameron and the minister in relation to this. Senator Cameron, I know interjections are disorderly, but, if I've got the wrong clause, I'm sure that you will set me straight. I think we're looking at Senator Cameron's amendment at the bottom of page 6 on sheet 8144, which refers to proposed section 712AA about the general requirements.

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

Yes.

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

It states:

(1) The Fair Work Ombudsman may apply, in writing, to a nominated AAT presidential member for the issue of an FWO notice referred to in subsection (2) if the Fair Work Ombudsman believes on reasonable grounds that a person:

  (a) has information or documents relevant to an investigation by an inspector into a suspected contravention of a provision of this Act, a fair work instrument or a safety net contractual entitlement that relates, directly or indirectly, to:

     (i) the underpayment of wages, or other monetary entitlements, of employees; or

     (ii) the unreasonable deduction of amounts from amounts owed to employees; or

     (iii) the placing of unreasonable requirements on employees to spend or pay amounts paid, or payable, to employees; or

(b) is capable of giving evidence that is relevant to such an investigation.

Now, even if we were to restrict it to the provisions of this act, I want to talk about some general principles. Senator Cameron, I genuinely want to explore this because I've got some concerns in terms of broader policy, and I will put this to the minister. I understand how important you regard this to be, and I understand its importance.

Let's say that this is about vulnerable workers being exploited. But the proposed limitation would actually prevent the Fair Work Ombudsman from using the power to investigate employers in other circumstances where it's not just about the payment of wages but it could be related. It could be a pattern of conduct where there has been an unfair dismissal—an employee has been unfairly dismissed; or it could be bullying allegations; it could be a discrimination case; it could be breaches of the National Employment Standards, which could involve the right to public holidays or parental leave; or there could be contraventions that could give rise to compensation in addition to any repayment of wages.

That's the basis of what I think Senator Cameron is trying to achieve, and I can understand the spirit in which he has dealt with this particular amendment. But what I'm trying to understand, and what my concern is, is that firstly, if you accept the proposition contained in the rationale for Senator Cameron's amendment—and again I understand the spirit in which he's moved it—there may be circumstances where the Fair Work Ombudsman ought to use their powers to relate to matters of adverse action which may cast a broader net in the context of dealing with these issues of underpayment of wages.

The second issue relates more broadly to the principles that we see with ASIC and with the ACCC, where they do have coercive powers to get documents and to get evidence in order to fulfil their statutory functions. And if the role of the Fair Work Ombudsman, unlike the ABCC, is primarily to uphold the rights of workers who have a genuine grievance—whether it's an adverse action, bullying allegations, discrimination cases, breaches of National Employment Standards, unfair dismissal or underpayment of wages—then surely what the government is proposing would be beneficial: to extend those powers so that the Fair Work Ombudsman has the power to deal with these cases that relate to the rights of workers who have a genuine grievance.

If what Senator Cameron is saying is that that power could be abused, then I wonder if there is another way to deal with this. It seems that the Fair Work Ombudsman will be restricted in their ability to deal with important issues such as bullying, discrimination and breaches of National Employment Standards, as well as underpayment of wages and adverse actions. So I'm trying to elicit assurance from Senator Cameron—genuinely, because I understand very much the spirit in which he's moved this amendment. I'm concerned that if his amendment goes through, even in the cases of underpayment of wages for vulnerable workers, it may constrain what is occurring here: it may constrain the work that the FWO can do to shut down these practices.

So, Senator Cameron, I hope you understand the spirit in which I'm asking these questions. I'm genuinely trying to work through this. If you have concerns that the powers will be abused by ministerial direction, I wonder if there is another way that we can deal with this rather than by this amendment. I think it will significantly narrow the powers of the Fair Work Ombudsman in a way that will impact on reasonable claims that workers may have—whether they are unfair dismissal, bullying, discrimination or a whole range of matters in addition to underpayment of wages.

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

Thanks, Senator Xenophon, for the constructive way you've put this. Can I just draw your attention again to the submission from the Fair Work Ombudsman, where the Deputy Fair Work Ombudsman spoke about this being for the most complex cases. This is not just for any issue. The Fair Work Ombudsman will still have the powers they have at the moment. There is no diminution, in these amendments, to the powers that the Fair Work Ombudsman already has. What the Fair Work Ombudsman put was that this was for the most complex cases. If you go to the bottom of page 6 on sheet 8144—that's the opposition amendments—and you look at (a), it says at the bottom 'that relates, directly or indirectly, to'. So there's a relationship on there that can be 'directly or indirectly'.

You have raised a number of other issues. You've raised unfair dismissal. You've raised bullying. You've raised discrimination. You've raised employment standards and compensation issues. As a former union official, I understand why you've raised all of those issues. We take the view that we would be prepared to amend this. When you go to the top of page 7 and you get Roman numeral (iii), we could add a Roman numeral (iv) and have appropriate words on unfair dismissal. We can do a Roman numeral (v) and do an appropriate set of words on bullying. We can do a Roman numeral (vi) on the discrimination, a Roman numeral (vii) on employment standards and a Roman numeral (viii) on compensation.

That would mean that, rather than this being a narrowing of the capacity of the Fair Work Ombudsman, it's a widening of the issues for the Fair Work Ombudsman, but it would be done in the context of the complex cases. The Fair Work Ombudsman didn't come and ask for powers to deal with the run-of-the-mill cases it deals with. I don't think it raised any of those issues during the hearings. It spoke about the most complex cases, and the bill has been proposed as protecting vulnerable workers.

So, Senator Xenophon, I put it to you that, if we make these changes, we will actually improve, and that's what this committee process is about. It's about improving amendments. It's about debating the issues, understanding the issues, having a bit of quid pro quo and dealing with the issues as they are raised. We believe that the issues you have raised can be attached to our amendment and cover all the concerns you have, and that would still then meet the issues you have raised. It would deal with the issues that the Fair Work Ombudsman have raised, and it would also ensure that the ideological attacks that this government has done in the past will not be done in this case.

So we are saying: we hear what you're saying; we accept what you're saying; we will amend our amendments to deal with it, but, on that basis, we should not be using this bill for anything other than what the Fair Work Ombudsman asked for and what the minister has publicly said it stands for. That would fix the problem. So I ask you what your view would be on that.

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

I just want to get some clarification of that. I would have to be the last person in this chamber to ever criticise anyone for doing amendments on the run, given that sometimes things get very fluid in the chamber, so no criticism of Senator Cameron. That's what the committee stage is about. That's why it's important to flesh out these issues and to deal with them as comprehensively as we can. In some cases—and I'll be guided by you, Mr Temporary Chair—you can park an amendment and deal with it before the committee stage is concluded.

I guess what I was concerned about was a general public policy position that if a piece of legislation gives a regulator powers—and I'm thinking of ASIC and the ACCC as precedents—and if there's been a contravention of that piece of legislation, then they have certain powers to mandatorily get witnesses to give statements, to get documents and sometimes to seize those documents before they are destroyed, if need be, in order that they can do their job. I dare say there may be cases where, if an employer has been involved in systemic fraud of their employees, you do need those coercive powers so you can go in there and seize those documents without notice, because, if you give them notice, I know what some of these people will do. Some of these crooks will go in and destroy the documents and evidence. Sometimes you need to have a raid on their premises and seize the documents in order that you have the evidence to do this.

If we are talking about issues that are effectively beneficial to workers—the matters that I have outlined—why wouldn't we give those powers to the Fair Work Ombudsman? Overwhelmingly, it appears to me that that would improve the rights of workers who have been done over, whether it's underpayment of wages, unfair dismissal, bullying, discrimination, breaches of national employment standards or contraventions that could give rise to compensation other than repayment of wages.

I want to work constructively with Senator Cameron and, indeed, the government on this. I'm just concerned if those amendments restrict it. I think we need to look at the drafting of this. If the foreshadowed amendments by Senator Cameron are still incidental to the issue of underpayment of wages, I wonder whether that would unnecessarily constrain the Fair Work Ombudsman. I'm trying to understand, through you, Mr Temporary Chair, what mischief there might be and what concerns Senator Cameron has in terms of any ministerial direction to—I think in his terms—overreach or overextend or abuse those powers. I think, from a public policy point of view, you ought to give a regulator the power to get the evidence they need and seize the documents they need in those exceptional circumstances. We don't know what an exceptional circumstance is until the investigation is underway. If there's evidence that a business has been engaged in systematic fraud of its employees in terms of their entitlements, or has been systematically involved in a form of adverse action against its employees, and there's documentary evidence of that, I don't want to constrain the Fair Work Ombudsman from going in there and seizing those documents to protect the rights of those workers.

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

Can I indicate that this is not about documents. This is about, as the Fair Work Ombudsman says, 'the most complex cases'.

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

How do you determine what a complex case is, though?

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

The Fair Work Ombudsman makes that decision. Here are two examples: 7-Eleven and Baiada. That's another issue that we'll come to in relation to this bill, because this has been concentrating on the franchise approach, but Baiada wasn't franchised. 7-Eleven was franchised, but Baiada, Caltex and a number of the other high-profile cases of stealing of workers' money weren't simply in relation to franchising.

We say that the Fair Work Ombudsman powers that are there now are not diminished by this at all. The Fair Work Ombudsman will have the powers it has now, and it will have additional powers arising from this bill with the appropriate amendments.

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

But why not more generally, though?

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

You say, 'Why not more generally?' Because this has to be about complex cases. The Fair Work Ombudsman did not ask for more general powers. The Fair Work Ombudsman put this in the context of the most complex cases. It was really about unpaid wages. You've raised a widening of the issues. Labor, the opposition, is saying that we understand what you're raising and we are inclined to agree with you.

But there are things we are not prepared to accept. You see this minister in action every question time. You see this government in action. When they're in trouble, they immediately attack the trade union movement. That's what they do. As soon as their internal problems spill into the public arena, as soon as they have a problem of overreach, they come here every question time and run an argument against the trade union movement. So we have no confidence in this minister in that area. We have no confidence in this government.

What we are saying is that this bill was promoted to protect vulnerable workers, not to be another piece of their arsenal against the trade union movement. I put very clearly to you, Senator Xenophon: they have the ABCC now, they have the ROC—the Registered Organisations Commission—and they have the Fair Work Commission and the Fair Work Ombudsman with general powers. So there's a raft of legislation that targets the trade union movement unheard of in any other advanced economy in the world, yet here we have the minister at the last minute during the debate in committee raising the issue of the union movement and this bill dealing with issues from industrial action.

How many more pieces of legislation can those opposite put in against industrial action in this country? The union movement—workers—in this country are hamstrung by legislation predominantly introduced by this government against them, and that's why we have bargaining. It's so difficult. And we have the Reserve Bank governor saying: 'You have to do better. Get out there and bargain and get more wages so we can get the economy boosted.' All this government does is obsess with the trade union movement.

Senator Xenophon, I feel you're raising these issues in a good way. You have raised unfair dismissal, you raised bullying, and you have raised compensation, employment standards and discrimination. We can add them. But we are not prepared to accept another ideological attack from this government and another set of laws that limit the legitimate capacity of the trade union movement to bargain for its members and look after its members. This is the fundamental issue that's before us. You have raised legitimate issues and they can be dealt with. But the minister, in her last contribution, actually raised a wider attack on the trade union movement. So I would appeal to the crossbench to understand what this minister is about and what this government is about. Do not give them another piece of artillery against the trade union movement in this country, because already we have amongst the most restricted trade union movements anywhere in the advanced world.

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

If I could briefly address what the amendments that the government is moving seek to do, the bill will grant the Fair Work Ombudsman new evidence-gathering powers similar to those already available to corporate regulators like ASIC and ACCC. So what the new powers will enable the Fair Work Ombudsman to do is to issue what is called an FWO, Fair Work Ombudsman, notice to compel a person to provide information or documents or to attend an interview. The powers will be particularly important in cases where no relevant documents appear to be available and an investigation has stalled. The Fair Work Ombudsman will have the power to issue a FWO notice if they reasonably believe a person has the information or documents relevant to the investigation or is capable of giving evidence that is relevant to an investigation. To complement these new powers, the bill will also prohibit, expressly, anyone from hindering or obstructing a Fair Work Ombudsman inspector or giving the Fair Work Ombudsman false or misleading information or documents.

The new powers will help progress investigations where people refuse to cooperate with Fair Work inspectors and there is no documentary evidence available, or it appears documents have been falsified. The new powers will provide the Fair Work Ombudsman with a greater suite of options to tackle exploitation of workers. As I have said, the new powers will enhance the Fair Work Ombudsman's ability to gather evidence where proper records do not exist or are being withheld by those with something to hide, and give the Fair Work Ombudsman new avenues to pursue those who hinder or obstruct investigations or provide false or misleading information.

The new powers will assist the Fair Work Ombudsman with important investigations like that of 7-Eleven. In the 7-Eleven investigation, the Fair Work Ombudsman experienced a wide lack of cooperation from franchisees and others that hindered its ability to gather evidence about suspected breaches of workplace laws. The ombudsman could not compel verbal evidence from people when employment records didn't exist, were falsified or were just not forthcoming. These powers will be used as a last resort by the Fair Work Ombudsman and will not be required where employers cooperate with an investigation. They will assist in obtaining the information necessary to bring actions against those who do not cooperate with investigations.

For the benefit of the Senate as well, there are safeguards in place to ensure the proper use of these powers. Robust safeguards will ensure that these powers are used appropriately. For example, the powers can only be exercised after written notice has been provided that gives at least 14 days notice to the recipient. A notice can only be issued by the Fair Work Ombudsman personally or one of her senior executives under delegation.

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

What about seizing documents in the case—

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Senator Xenophon, with your questions, please make a note of them and I'll give you the call when the minister completes her presentation.

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

As an additional safeguard, the witness has a right to legal representation and reimbursement for a wide range of expenses, including legal expenses.

In terms of the amendments proposed by Labor, why does Labor want to limit the powers of the ombudsman that it established to enforce the act that it created? Imagine, for example, in relation to other corporate regulators like ASIC or the ACCC, saying to them, 'You only have the ability to enforce certain parts of your act.' As I have already stated, this would mean quite literally that employers who want to ensure that employees are wrapped up in a litigious process over whether a power was or was not be able to be exercised could do that—especially well-resourced employers. It could lead to the employee quite literally being dragged through a legal process through no fault of their own. The Fair Work Ombudsman is the regulator responsible for regulating or enforcing the Fair Work Act. Quite literally, if Labor's amendments are supported the Fair Work Ombudsman will have her hands or its hands tied when investigating, for example, an unfair dismissal claim or a bullying claim against an employer. As I said, any hostile employer, anyone, will be able to argue that the powers do not apply to them and use litigation to avoid the ombudsman properly investigating the case against the employer.

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

I really don't know where that took us. That was just a regurgitation of the issues that I think most of us agree on, except that this is what the Fair Work Ombudsman put to us for dealing with the most complex cases. We are not limiting the powers of the Fair Work Ombudsman. The Fair Work Act is unchanged in relation to the general powers. This is about the most complex cases, and it is about ensuring that the bill deals with what the minister has publicly said it is about—that is, protecting vulnerable workers. But in the last minute, we've got the minister throwing in this argument that it's about industrial action. I will just repeat it quickly. We have the ABCC, the Fair Work Ombudsman, the Fair Work Commission and the registered organisations, and we have limitations on bargaining and industrial action that no other advanced country in the world has. We are determined that it should not be harder for ordinary Australians out there to have their union represent them effectively.

So, Senator Xenophon, I will indicate to you that—we had that quick chat between times—we would be prepared to move to another of our amendments now so that we can commence discussions with the crossbench, because we won't get agreement from the minister. The minister has given the game away. She wants to use this to attack union rights further and to limit industrial action even more. We want to work with you and the crossbench to deal with the issues that you have raised, and, on that basis, I would seek advice from the chair as to whether we can move to another aspect of this. I would be prepared, if I need to, to move on to another aspect and allow some discussions to take place on this as soon as practicable.

The TEMPORARY CHAIR: Senator Cameron, you can request to postpone the debate on this particular amendment and, if it is the wish of the committee and they agree, then we can move on to another amendment.

I would move that way, Chair.

The TEMPORARY CHAIR: There is no need to move it. It is just a request. Is the committee happy that we postpone the debate on opposition amendments (28) to (34) and (39) on sheets 8144, and that we move to another amendment? Is there any dissent in that? Everyone seems happy, and there is no dissent. Senator Cameron, what amendment would you like to go to?

I seek leave to move items (40) and (41) on sheet 8144 together.

Leave granted.

I move items (40) and (41) on sheet 8144:

(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.

I would like to thank the committee for their consideration of that very important discussion that we had, and maybe we can come back fairly quickly and deal with this in the near future.

Amendments (40) and (41) will make it easier for vulnerable workers to pursue their employer for unpaid wages. The Fair Work Act imposes obligations on employers to make, keep and provide payslips to employees. These amendments will ensure that, if an employer does not comply with its obligations and the employee alleges that they have been underpaid, it is the employer who has to prove that it has paid the employee correctly. It is a pretty simple position. We've had legislation moved recently by the government and the minister about payslips, but it is still a problem. It has not resolved the issues. What we want is the reverse onus, to make sure that where an employer has not met its legal obligations, under what the minister has put and what this parliament has agreed to, you reverse the onus of proof and make it easier for vulnerable workers to prosecute their case and not allow wage thieves to get out of their legal obligations because they have not complied with the law as it stands. Reversing the onus of proof on this is sensible. Reversing the onus of proof will support vulnerable workers. Reversing the onus of proof will make this legislation fairer. We are really keen to see this happen, because it would send out the message that we are not prepared to tolerate employers either not keeping wage slips or destroying wage slips and making it almost impossible for workers, especially vulnerable workers, to pursue their legitimate rights. If we really want to protect vulnerable workers, these two amendments will go a long way towards doing that.

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

The government opposes Labor's amendments (28) to (34) and (39). These amendments would reverse the onus of proof on employers who are the subject of a wage related claim and had not kept proper records. Reversing the onus of proof so that employers have to prove their innocence is unfair. It starts with a presumption that all employers are doing the wrong thing, with which we cannot agree. The vast majority of complaints to the Fair Work Ombudsman are actually about mistakes that are resolved cooperatively and quickly. This amendment, on the other hand, will encourage opportunistic claimants and punish small and medium businesses that make genuine mistakes. There is almost no scope for an employer faced with litigation by a disgruntled former employee to show that they made an honest mistake. In underpayment cases, the applicant bears the onus of proof and there is insufficient justification to change this fundamental principle of justice.

The government's policy under the bill is to further deter the small minority of wrongdoers who deliberately fail to meet their recordkeeping obligations under the act by increasing penalties for recordkeeping failures. Reversing the onus of proof will mean employees can claim they worked on days and times when they didn't work, and the employer will have to somehow prove that the employee did not work. This presumption of guilt, when the majority of employers do the right thing, is unworkable. As I said, it will punish small and medium-sized businesses that make genuine mistakes that are resolved cooperatively and very, very quickly.

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

The minister just gets up and makes points on the run. It really is getting to a stage where the argument is not being dealt with but the rhetoric from the minister is getting stronger. This is not about genuine mistakes.

I went through recently some of the Fair Work Ombudsman's decisions in enforceable undertakings, and the minister just seems to have forgotten that if somebody makes a genuine mistake then there is a well-established process within the Fair Work Ombudsman legislation to get enforceable undertakings. I'm a bit tired, quite frankly, of the Fair Work Ombudsman coming to estimates and running an argument that it's just all mistakes from employers and that we will do an enforceable undertaking when tens of thousands of dollars of workers' money has been stolen. That's what happens now. Tens of thousands of dollars are stolen from some of the most vulnerable workers in this country, and you get an enforceable undertaking. The enforceable undertaking, I think, has got a place, and the enforceable undertaking has got a place when there is a genuine mistake. But one company stole $60,000 in unpaid wages from ordinary workers, and an enforceable undertaking was put in place. The enforceable undertaking is not about paying the workers back quickly. They've got a payment schedule. Where else do you do a payment schedule when you've stolen from someone?

The Fair Work Ombudsman has got so much flexibility now that this argument that a genuine mistake will get caught up in this is just another example where this minister is not genuine about protecting vulnerable workers, absolutely not genuine. The arguments that she has just gone through do not stand up to any scrutiny. Some of the other things in the enforceable undertakings decisions included tens of thousands of dollars stolen from workers, and the Fair Work Ombudsman saying to the company, 'Pay $5,000 to a charity, and that's you. On you go.' And a lot of these enforceable undertakings are breached and further enforceable undertakings imposed.

An issue that I have with the operation of the Fair Work Ombudsman is that it is disingenuous. It is not correct to say that this would end up in a position where genuine mistakes would be punished. This is about an employer not keeping proper records. This is about an employer not having pay slips. I can go back to the speeches the minister made about how important it was, how the government were really attacking the ripping off of workers because they were enforcing extra laws in relation to the keeping of pay slips.

So the minister's arguments have got no validity. Genuine mistakes are not the issue. We don't have a presumption that all employers are doing the wrong thing. But what we do know from the Fair Work Ombudsman—we know this from Four Corners, we know this from the behaviour of Caltex, we know this from the behaviour of 7-Eleven—is that some employers carry out the most egregious theft against workers in this country. That's the reality of where we are and that's why we say the reverse onus of proof is important to ensure that vulnerable workers are protected. If an employer makes a mistake, there should be processes through enforceable undertakings and other means to deal with it. But what the minister is trying to say now is that you can breach the laws that I said were so important and there will be no problem for you. All the rhetoric and all the high-and-mighty arguments that we had about what a great job the government was doing by changing laws in relation to pay slips mean nothing when it comes to this government.

We think the reverse onus of proof is absolutely essential to ensure that vulnerable workers are protected. Genuine mistakes will not be an issue. We don't presume that all employers do the wrong thing, but we do know that many employers do a terrible disservice—breach the law, steal workers' pay—and then hide behind having no pay slips. This is unacceptable, and I just think, again, that the minister's contribution demonstrates that this is not really about protecting vulnerable workers; it is about a fig leaf for this government to say it's doing something about it.

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

Senator Cameron, I understand the intent of it. This bill does include a number of provisions to actually deal with vulnerable workers so that we don't have a repeat of the 7-Eleven case. I think there is some consensus from the opposition that that will have a significant beneficial effect. I think the general principle is that there can be a role for reverse onus of proof in circumstances where it is necessary to deal with a particular mischief or a particular problem. But the question that I think will be put by small businesses is this: what happens where a false claim is made? What happens when someone says they worked certain hours when in fact they didn't? Let's assume that it's a rare occurrence. But I can imagine some small business operators will be saying, 'I've got a system in place for paying workers. I'll give them a pay slip in an envelope with cash'—if they don't have a computerised payroll. What do we do about issues of false claims?

I can imagine that the reverse onus of proof for small and medium businesses could see some very significant litigation. In other words, the onus is on them to prove their innocence, and that itself could be a very costly exercise. I'm genuinely struggling with this amendment. I'm worried about unintended consequences. I would be grateful if the proponent of this amendment, Senator Cameron, could outline what he says will be the safeguards to minimise or prevent unintended consequences.

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

Just let me deal with the principle first. The principle that we are trying to deal with is the principle that the government claims it's trying to deal with, and that is the protection of vulnerable workers. That's the principle. The principle is not about protecting a small business that has written workers off and is stealing their wages. It's about protecting vulnerable workers.

I've been a blue-collar worker, and pay slips are not the only way that a company or a small business can demonstrate its bona fides in terms of that individual worker. The company will have bank statements. Some of those companies will have CCTV. Some companies clock on and clock off. There are a range of things that are not in the control of a vulnerable worker but which are in the control of a small business. They have more opportunity than a vulnerable worker does to prosecute their argument against any case someone brings against them that may not be a genuine case. So there are checks and balances.

There are other checks and balances as well. The Fair Work Ombudsman itself is a check and balance. The Fair Work Commission is a check and balance. So there are other avenues for employers to deal with this. But if they have not got pay slips, which is a breach of the law that this minister brought in and said was such a great thing, if they breach that then the onus of proof should be reversed. The vulnerable worker doesn't have access to the information. The vulnerable worker is the one that's vulnerable. The small business, if it's a genuine small business, will be able to demonstrate its position and, even if it's done the wrong thing, it won't be targeted in an egregious way. That's what's been happening with the Fair Work Ombudsman and enforceable undertakings. So you've got enforceable undertakings, the Fair Work Commission, the Fair Work Ombudsman and the records that the company keeps. You've got the clock on/clock off records. You've got CCTV. It's all available to that small business. But the vulnerable worker is vulnerable. The vulnerable worker's the one that's left, mainly on their own, trying to deal with this, and that's an issue. That's why, Senator Xenophon, we say that the concerns you have are genuine concerns but should not stop us from dealing with this in a way that protects that vulnerable worker. The law requires a company to keep pay records and employment records. Small business, big business or massive business—under the law, you must keep pay records and employment records. That's an obligation.

Our amendment applies when an employer has not complied with the law, when they've breached the law. They should have to show why they haven't complied with the law. What is the problem here? I just don't understand it. The reverse onus does not apply if the failure was due to exceptional circumstances beyond the employer's control. The amendment means vulnerable workers in situations where pay slips and employment records haven't been provided have a fair chance of being looked after. This is about vulnerable workers. This is about the law as it stands now. This is about ensuring that wage theft, which is getting bigger and bigger under this minister's watch, is dealt with. It is fair. It's absolutely fair. Wage theft is getting bigger in this country; that is what the submissions to the inquiry say. There are problems here and you fix them by reversing the onus of proof.

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

The trouble with this place is that there's a lot of invective and a lot of long bows being drawn. I don't think it's fair to accuse the minister of increased wage theft. This is actually a beneficial and good piece of legislation that will tackle this issue. I think that's an unfairly partisan comment and is unhelpful in the context of this debate. I think Senator Cameron knows the genuine spirit in which I'm asking my questions. I do not want to unduly delay the committee stages of this bill, but this is an important amendment. My concern is that small businesses might find themselves in the Kafkaesque legal nightmare where, if somebody makes a false claim, they are presumed guilty unless they can prove themselves innocent.

Now, what I think Senator Cameron was saying—and it is not through a lack of Senator Cameron articulating it, because he knows this stuff inside out and backwards; I accept his expertise in this field—was this. This is about reverse onuses of proof. I've spoken about reverse onuses of proof recently, in terms of foreign bribery offences and the issue of the Commonwealth Bank and the money laundering matters that are very, very serious. What they do in other jurisdictions, when it comes to foreign bribery—for instance, in the UK, and the principles here would be similar—is this: if, as a business, you have a robust system in place of doing the right thing and you have processes in place, then that acts to protect you from unfair claims against you.

If Senator Cameron were saying that, if a business is complying with the law and has a proper system of pay and pay slips, the requirement for the reverse onus of proof would apply in those circumstances—and I'm not suggesting Senator Cameron is saying that, but if that were what was being said—then that would be unfair. Say you had good employers who had proper systems in place to deal with their payroll and were compliant with the legislation, and then somebody made a claim saying, 'You haven't paid me.' If they had a system in place that was reasonable and robust, then why should that business be subject to a claim where they could be tied up in litigation and end up in court spending tens of thousands of dollars saying, 'Despite the fact that I have a process and a system in place, I'm being accused of not paying someone'? What do you do then? That's quite different from the circumstances where an employer has no system and doesn't comply with the provisions of this bill—or, indeed, with general employment standards in terms of payment. That's the contrast. So what I'm trying to genuinely appreciate here is: will those small and medium businesses that have done the right thing and have a system in place that is acceptable and fair have to be subject to a reverse onus of proof? That, to me, would be unfair.

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

Thanks, Senator Xenophon, for raising those issues. I just want to go to this issue. The law requires companies to keep pay records and employment records. So, where a company, a small business, is complying with the law, and they've got their pay records and their employment records, then there is no need for a reverse onus of proof.

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

No need, or would it still apply?

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

It would not apply, because they would have the records. This reverse onus of proof is for where the company has not kept pay records and employment records, or has kept them but destroys them to make it difficult.

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

I don't think it says that, though.

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

It doesn't; it applies to everyone. It is a reverse onus—

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

If I can take you to page 12 of our amendment sheet 8144, there is a heading: '557C Presumption where records not provided'. What it says under (2) is:

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

But it also says:

(1) If:

  (a) in proceedings relating to a contravention by an employer of a civil remedy provision … 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.

So, if they have breached the law—Senator Cash's law, that she brought in—then we are saying that the reverse onus of proof should apply. What is unfair about that?

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

From listening to the debate—through you, Chair, to Senator Xenophon—I wasn't hearing that the minister was being accused of actually conducting the wage theft herself, but, because we have a weak bill with built-in failures, the bill will allow wage theft to continue and to flourish.

That's why we need this amendment. We really do need the amendment with regard to reversing the onus of proof. That's been set out very clearly. We need that reverse of the onus of proof for employers, and it needs to be in place. What is relevant here is the companies involved. If they've done the right thing, they've got nothing to fear under this amendment. They have a job to do and they've got their books to keep; that's all part of what they do. If they're doing the right thing, they have nothing to fear by this amendment. That's the essence of it here and why we need it.

Again, let's remember what we're dealing with and what the title of this bill is: 'protecting vulnerable workers'. There's a whole lot of holes in this bill that, as the debate goes on and the minister has to set out the details, become more apparent. This is one of them, and it's one of them that needs to be tightened up. That's why the Greens are supporting this amendment.

I think it's worth reminding ourselves of the background to the bill, because it is informative of where the government is coming from. This bill, the protecting vulnerable workers bill, wasn't the government's idea in the first instance. It came about because of all the scandalous stories out there. Again, let's remind ourselves: we're in such a privileged position with our work conditions, the wages we get and how we work. Yes, people in this place work incredibly hard, and I acknowledge that, but we're very privileged compared to these workers, who are often treated just so appallingly. That's why we need the tightest bill before us.

The government don't come from that background; they don't come from a position of doing the right thing by working people. Their job—why they are elected—is to look after the companies. We see that time and time again. Why they have now brought the bill forward is the media coverage of the scandals in so many major companies in this country, companies that we all interact with. We're coming across workers who clearly are being exploited as we buy our newspapers at the corner convenience shop or buy petrol at these big franchise companies.

This was massive, and the government had to do something about it. But they have left too many holes in this. This one needs to be plugged; the amendment before us does that, and it deserves to be passed.

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

I think I understand the mischief that Senator Cameron is trying to deal with. I'm just doing what I'm being paid to do in the committee stages, to make sure there aren't unintended consequences.

This is not a criticism of Senator Cameron at all, but I'm concerned about the proposed section 557C(2), which states:

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

The reverse onus of proof provision would have to be read in the context of proposed subsection (2), and it is broader than may be envisaged. It's not a criticism. I have a genuine concern about the way in which it is drafted. I'm worried that a decent employer could be subject to an incredibly difficult situation where they have done the right thing and they have kept the right records but the way that subclause 2 is drafted would mean that the reverse onus of proof would apply in any event. But I also understand the flip side of that—if an employer doesn't have a proper system, has a disregard for having a proper system and is recklessly sloppy in the way they keep their records, the reverse onus of proof could apply.

The other aspect of this is that there might be some small family businesses that have longstanding employees. I hear this all the time. There might be three or four employees. The business has a not lax but very casual way of just handing over an envelope of cash with a pay slip. It's not a computerised system. I think that they should at least have a chance for some transitional provisions to make sure that those small employers don't fall foul of this. I'm still worried about false claims, but this is particularly about the drafting. Again, it is not a criticism. The way that subclause 2 would operate in conjunction with subclause 1 may mean—and I may be wrong in my interpretation of this—that the reverse onus of proof would apply even in cases where employers have a proper system of record keeping for the payment of wages.

Again, Senator Cameron, I've got a few meetings in this place in the next couple of hours. I'm happy to meet early in the morning to thrash this out with you and with the government. I'm sure people are frustrated and want to get this bill over and done with one way or the other. I think we need to be mindful of Senator Cameron's amendments and the work that he's done but also very cautious of unintended consequences.

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

I appreciate the proposition that you've put. We would be more than happy to meet with you, Senator Xenophon, and take you through this in some detail. I think it's a pretty simple proposition: if you comply with the law as it stands and you keep your employment records and your pay records then you don't have a problem. You don't suffer. I'll retract that. You're not then obliged to have the reverse onus of proof.

What we are saying here is pretty simple: the law requires you to make and keep a record. It's not just about writing a little slip out to say, 'I'm going to pay you $1,000 this week,' handing it over and calling that a pay slip. That is not a pay slip. You have to keep a record. That's what the law says. So if you've made and kept a record, as you are obliged to do, the reverse onus of proof does not apply. I think it's pretty clear.

Senator Xenophon interjecting—

If it's a false claim, you've got the records to prove it's a false claim, Senator Xenophon. You've got to make and keep a record. If it's a false claim then you've got access to the Fair Work Ombudsman, the Fair Work Commission and anywhere you want to resolve it. But these are issues of vulnerable workers. I'm not saying for one minute, Senator Xenophon, that you are, but we shouldn't be looking for ways to allow the wage theft that is growing in this country to continue. That is fundamental. If you have kept records and you have complied with the law as it stands now, then the reverse onus of proof does not apply. And our amendment on sheet 8144, section 557C 'Presumption where records not provided', if you go to (c) it says, if:

… the employer failed to comply with the requirement; the employer has the burden of disproving the allegation.

So there are two steps here. It's not as if someone just walks in and makes a false allegation. That doesn't work. It is not reverse onus if somebody just walks in and makes a false allegation. The reverse onus is where the employer failed to comply with the requirement. It's the legal requirement an employer has.

Why would we, in this place, after passing laws in relation to record keeping and pay slips, then say, 'If you don't do that, then this is an onerous burden on small business'. I do not think it's an onerous burden to comply with the law in relation to pay slips. If you're a small business, then you have got to do it. You have got to do it for taxation. You have got to make sure that you're not part of the black economy. You have got to make sure that workers who actually go and work don't have their wages stolen and that they get the pay that is due to them. This does not apply if the employer has kept the pay records. Then it becomes a dispute. If it's a dispute about the pay record itself, then the Fair Work Ombudsman is there and the Fair Work Commission is there. If the employee is lucky enough to be in a union, the unions can come in and support them in that application.

If anyone is listening in, join a union and a lot of these things don't happen to you. Join a union; that will help. But we cannot have a proposition here where, if an employer fails to meet its obligations under the law, they can steal from an employee. That's what's happening at the moment. Some employers are deliberately breaching the law by not maintaining records and not providing pay slips, and then the onus is on the employee to try and prove that they have been ripped off. This reverse onus is about protecting vulnerable workers. That's what this minister says this is about. But she's been exposed again today about what is underlying this: that is, to come after the union movement and to have the Fair Work Ombudsman given more powers on industrial action. That's clear. But that has not been the stated position of this minister and it wasn't a submission from the department. Yet, during the committee period, we suddenly get this argument that this is about giving powers to the Fair Work Ombudsman on industrial action.

That's why we are so concerned that workers get a fair go in this country. They won't get a fair go under this minister and they won't get a fair go under the coalition, and we need to make sure that if an employer doesn't comply with the law as it stands now that those workers are not subjected to an unfair and almost impossible argument to prove that they have been underpaid. It's up to the employer under this amendment. If the employer has not complied with the law of the land as it stands now, it's up to that employer to ensure that they have pay slips and that they have kept records. If they've kept pay slips, they've kept records, they've got CCTV, they've got bank payments to a worker or they've got a slip to say, 'I've paid the worker', then the reverse onus of proof is not an issue. But it is an issue if they've destroyed records. It is an issue if they've stolen from vulnerable workers. Wage theft is growing, and we want to deal with it.

These are issues that we are more than happy to continue to discuss with you, Senator Xenophon. We've got a fair bit of work to do with you. I know how busy you are and how busy your office is, but you've made the offer to sit down with the opposition and deal with these aspects. We are happy to go through any of the aspects of our amendments, because our amendments are about genuinely protecting vulnerable workers. I don't think, Senator Xenophon, that you would argue that tonight we are putting up some kind of smokescreen. The issues we have raised are genuine issues. They are issues that the committee process was designed to try and deal with. You have used committee process properly and effectively to raise concerns you have about some of our amendments. We have said we will meet with you, we will discuss them with you and we will try to meet agreement with you on these issues.

This is not about protecting some egregious rip-off of workers, whether it's a small business—you say 'small business' and suddenly a little halo appears above those two words as if the small business can do no wrong.

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

I never said that.

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

I'm not saying that you propose that, but certainly some of the rhetoric you hear from the other side is that small business can do no wrong. Small business can do a lot of wrong. Small businesses can egregiously rip off workers. They can steal from workers. It is our job as the legislature to make sure that vulnerable workers are not dealt with wrongly or illegally. These are the issues we are happy to sit down and talk to you about.

We certainly support the Fair Work Ombudsman having general oversight and the power to deal with workers, but it's got to be done fairly. It hasn't got to be done on the basis of what we've discovered tonight because the minister has given the game away that this is about industrial action. That has not been raised anywhere until tonight. I think that part of the problem with this minister and with this government is that they will use any argument, any sleight of hand, any name for a bill—for example, calling it 'protecting vulnerable workers' bill when in reality it really is about trying to stop workers taking industrial action. We are not going to accept that. We are very concerned about that. We have come here with a range of amendments that are genuinely put for proper purposes, purposes consistent with what this minister says this bill is about: protecting vulnerable workers. It is not about imposing further restrictions on the genuine operation of bargaining and industrial action in this country. We are not going to accept for a minute what really is behind some of the views of this government to further restrict workers.

The Reserve Bank says there are problems because of low wage growth. Why have we got low wage growth? It is because we have some of the worst industrial laws in the advanced world. They make it so hard. The Reserve Bank is raising concerns about low wage growth and the implications that has for employment, a growing economy and inequality in this country. These are the issues we are concerned about. What we are putting here are amendments that are fair, proper and go to protecting vulnerable workers. It should not be a Trojan Horse to attack the trade union movement. It's about protecting vulnerable workers.

Progress reported.