Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 16 August 2017
Page: 5887


Senator CAMERON (New South Wales) (18:33): by leave—I move items (40) and (41) on sheet 8144 together:

(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.