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Wednesday, 16 August 2017
Page: 5883


Senator XENOPHON (South Australia) (18:13): 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.