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Wednesday, 16 August 2017
Page: 5879


Senator CASH (Western AustraliaMinister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (17:52): 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.