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Wednesday, 16 August 2017
Page: 5885

Senator CASH (Western AustraliaMinister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (18:24): If I could briefly address what the amendments that the government is moving seek to do, the bill will grant the Fair Work Ombudsman new evidence-gathering powers similar to those already available to corporate regulators like ASIC and ACCC. So what the new powers will enable the Fair Work Ombudsman to do is to issue what is called an FWO, Fair Work Ombudsman, notice to compel a person to provide information or documents or to attend an interview. The powers will be particularly important in cases where no relevant documents appear to be available and an investigation has stalled. The Fair Work Ombudsman will have the power to issue a FWO notice if they reasonably believe a person has the information or documents relevant to the investigation or is capable of giving evidence that is relevant to an investigation. To complement these new powers, the bill will also prohibit, expressly, anyone from hindering or obstructing a Fair Work Ombudsman inspector or giving the Fair Work Ombudsman false or misleading information or documents.

The new powers will help progress investigations where people refuse to cooperate with Fair Work inspectors and there is no documentary evidence available, or it appears documents have been falsified. The new powers will provide the Fair Work Ombudsman with a greater suite of options to tackle exploitation of workers. As I have said, the new powers will enhance the Fair Work Ombudsman's ability to gather evidence where proper records do not exist or are being withheld by those with something to hide, and give the Fair Work Ombudsman new avenues to pursue those who hinder or obstruct investigations or provide false or misleading information.

The new powers will assist the Fair Work Ombudsman with important investigations like that of 7-Eleven. In the 7-Eleven investigation, the Fair Work Ombudsman experienced a wide lack of cooperation from franchisees and others that hindered its ability to gather evidence about suspected breaches of workplace laws. The ombudsman could not compel verbal evidence from people when employment records didn't exist, were falsified or were just not forthcoming. These powers will be used as a last resort by the Fair Work Ombudsman and will not be required where employers cooperate with an investigation. They will assist in obtaining the information necessary to bring actions against those who do not cooperate with investigations.

For the benefit of the Senate as well, there are safeguards in place to ensure the proper use of these powers. Robust safeguards will ensure that these powers are used appropriately. For example, the powers can only be exercised after written notice has been provided that gives at least 14 days notice to the recipient. A notice can only be issued by the Fair Work Ombudsman personally or one of her senior executives under delegation.

Senator Xenophon: What about seizing documents in the case—

The TEMPORARY CHAIR ( Senator Williams ): Senator Xenophon, with your questions, please make a note of them and I'll give you the call when the minister completes her presentation.

Senator CASH: As an additional safeguard, the witness has a right to legal representation and reimbursement for a wide range of expenses, including legal expenses.

In terms of the amendments proposed by Labor, why does Labor want to limit the powers of the ombudsman that it established to enforce the act that it created? Imagine, for example, in relation to other corporate regulators like ASIC or the ACCC, saying to them, 'You only have the ability to enforce certain parts of your act.' As I have already stated, this would mean quite literally that employers who want to ensure that employees are wrapped up in a litigious process over whether a power was or was not be able to be exercised could do that—especially well-resourced employers. It could lead to the employee quite literally being dragged through a legal process through no fault of their own. The Fair Work Ombudsman is the regulator responsible for regulating or enforcing the Fair Work Act. Quite literally, if Labor's amendments are supported the Fair Work Ombudsman will have her hands or its hands tied when investigating, for example, an unfair dismissal claim or a bullying claim against an employer. As I said, any hostile employer, anyone, will be able to argue that the powers do not apply to them and use litigation to avoid the ombudsman properly investigating the case against the employer.