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Wednesday, 16 August 2017
Page: 5892


Senator CAMERON (New South Wales) (18:57): Thanks, Senator Xenophon, for raising those issues. I just want to go to this issue. The law requires companies to keep pay records and employment records. So, where a company, a small business, is complying with the law, and they've got their pay records and their employment records, then there is no need for a reverse onus of proof.

Senator Xenophon: No need, or would it still apply?

Senator CAMERON: It would not apply, because they would have the records. This reverse onus of proof is for where the company has not kept pay records and employment records, or has kept them but destroys them to make it difficult.

Senator Xenophon: I don't think it says that, though.

Senator Cash: It doesn't; it applies to everyone. It is a reverse onus—

Senator CAMERON: If I can take you to page 12 of our amendment sheet 8144, there is a heading: '557C Presumption where records not provided'. What it says under (2) is:

Subsection (1) does not apply if the failure to comply was due to exceptional circumstances beyond the employer's control.

But it also says:

(1) If:

   (a) in proceedings relating to a contravention by an employer of a civil remedy provision … 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.

So, if they have breached the law—Senator Cash's law, that she brought in—then we are saying that the reverse onus of proof should apply. What is unfair about that?