Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 147 (10 May 2017)

• Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
• Reversal of evidential burden of proof 35

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Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017

Purpose	This bill seeks to amend the Fair Work Act 2009 to: • introduce higher penalties for 'serious contraventions' of prescribed workplace laws; • increase penalties for record-keeping failures; • prohibit employers asking for 'cash back' from their employees; • clarify the accessorial liability provisions relating to underpayments by franchisees or subsidiaries; • provide the Fair Work Ombudsman with new formal evidence-gathering powers; and • prohibit anyone from hindering or obstructing an investigator, or giving the Fair Work Ombudsman false or misleading information or documents
Portfolio	Employment
Introduced	House of Representatives on 1 March 2017
Bill status	Before House of Representatives
Scrutiny principle	Standing Order 24(1)(a)(i)

2.94 The committee dealt with this bill in Scrutiny Digest No. 3 of 2017. The Minister responded to the committee's comments in a letter dated 2 May 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 2.

Reversal of evidential burden of proof ^[35]

Initial scrutiny – extract

2.95 Proposed section 707A(1) introduces a civil penalty provision in relation to intentionally hindering or obstructing the Fair Work Ombudsman or an inspector. Proposed subsection 707A(2) provides two exceptions to this civil penalty provision, stating that it does not apply if the person has a reasonable excuse or the person was not shown the Ombudsman or inspector's identity card or they were not told about the effect of this section. The maximum penalty for contravention of the provision is 60 penalty units.

2.96 The explanatory memorandum indicates that a person wishing to make a 'reasonable excuse' bears an evidential burden (requiring that person to raise evidence about the matter), but not a legal burden (requiring the person to positively prove the matter).^[36] While the explanatory memorandum provides reasons for reversing the burden of proof in relation to this 'reasonable excuse' exception, no reasons are provided for reversing the burden of proof in relation to the exception where the person was not shown the relevant identity card or told about the effect of the section. The committee expects any such reversal of the evidential burden of proof to be justified, particularly as it is not clear to the committee why such matters would be peculiarly within the knowledge of the person who may be subject to the penalty.

2.97 As the explanatory materials do not address this issue, the committee requests the Minister's advice as to why it is proposed to place an evidential burden on a person seeking to rely on the exception in proposed paragraph 707A(2)(b) (i.e. where the person was not shown the inspector's identity card or told about the effect of the section).

Minister's response

2.98 The Minister advised:

Consistent with general legislative policy, the respondent must raise evidence if they wish to claim a 'reasonable excuse', whether under proposed paragraph 707A(2)(a) or (b). See for example the Work Health and Safety Act 2011, s 188; Navigation Act 2012, s 321; Fisheries Management Act 1991, s 108(1)(f); Aviation Transport Security Act 2004, s 79(5), (6); Biosecurity Act 2015, s 440.
Proposed paragraph 702A(2)(b) is different from these schemes as it gives a very specific example of a reasonable excuse. It is intended to be a beneficial provision which clarifies that a person has a reasonable excuse for hindering or obstructing a Fair Work Inspector if they did not see their identity card, and were not advised about the consequences of contravening the section. (Please note that identity card requirements only apply to Fair Work Inspectors while exercising their power to enter premises under the Fair Work Act 2009 (Fair Work Act)).
The provision simply emphasises an important reasonable excuse which may be available to a person facing proceedings for hindering or obstructing a Fair Work Inspector. Like any other reasonable excuse, the respondent has the evidential burden.
The provision does not unduly trespass on personal rights and liberties for these reasons and because:

• In any proceedings brought under proposed section 707A the applicant would need to prove the Inspector had been lawfully exercising their powers at the time, including by proving the Inspector had properly identified themselves upon entry by showing their identity card (s 708(3)).

• The applicant must still disprove the matters on the balance of probabilities if the respondent discharges the evidential burden.

• The maximum penalty is a civil penalty of 60 penalty units for individuals, and there is no possibility of imprisonment.

Committee comment

2.99 The committee thanks the Minister for this response. The committee notes the Minister's advice that the exception where a person was not shown the relevant identity card or told about the effect of the section is intended to give a specific example of what would constitute a reasonable excuse. The committee also notes the advice that in any proceedings the applicant would need to prove the Inspector had been lawfully exercising their powers at the time, including by proving the Inspector had shown their identity card and the maximum penalty is a civil penalty of 60 penalty units for individuals, and there is no possibility of imprisonment.

2.100 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.101 In light of the information provided, the committee makes no further comment on this matter.

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[35] Schedule 1, item 48, proposed paragraph 707A(2)(b) of the Fair Work Act 2009.

[36] Explanatory memorandum, p. 24.