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Wednesday, 16 August 2017
Page: 5894


Senator XENOPHON (South Australia) (19:03): I think I understand the mischief that Senator Cameron is trying to deal with. I'm just doing what I'm being paid to do in the committee stages, to make sure there aren't unintended consequences.

This is not a criticism of Senator Cameron at all, but I'm concerned about the proposed section 557C(2), which states:

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

The reverse onus of proof provision would have to be read in the context of proposed subsection (2), and it is broader than may be envisaged. It's not a criticism. I have a genuine concern about the way in which it is drafted. I'm worried that a decent employer could be subject to an incredibly difficult situation where they have done the right thing and they have kept the right records but the way that subclause 2 is drafted would mean that the reverse onus of proof would apply in any event. But I also understand the flip side of that—if an employer doesn't have a proper system, has a disregard for having a proper system and is recklessly sloppy in the way they keep their records, the reverse onus of proof could apply.

The other aspect of this is that there might be some small family businesses that have longstanding employees. I hear this all the time. There might be three or four employees. The business has a not lax but very casual way of just handing over an envelope of cash with a pay slip. It's not a computerised system. I think that they should at least have a chance for some transitional provisions to make sure that those small employers don't fall foul of this. I'm still worried about false claims, but this is particularly about the drafting. Again, it is not a criticism. The way that subclause 2 would operate in conjunction with subclause 1 may mean—and I may be wrong in my interpretation of this—that the reverse onus of proof would apply even in cases where employers have a proper system of record keeping for the payment of wages.

Again, Senator Cameron, I've got a few meetings in this place in the next couple of hours. I'm happy to meet early in the morning to thrash this out with you and with the government. I'm sure people are frustrated and want to get this bill over and done with one way or the other. I think we need to be mindful of Senator Cameron's amendments and the work that he's done but also very cautious of unintended consequences.