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Wednesday, 16 August 2017
Page: 5881


Senator XENOPHON (South Australia) (18:03): 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.

Senator Cameron: Yes.

Senator XENOPHON: 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.