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Wednesday, 16 August 2017
Page: 5889


Senator CASH (Western AustraliaMinister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (18:36): 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.