Long Service Benefits Portability Bill 2018

Ms HUTCHINS (Minister for Industrial Relations) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006(Charter), I make this statement of compatibility with respect to the Long Service Benefits Portability Bill 2018.

In my opinion, the Long Service Benefits Portability Bill 2018 (Bill), as introduced to the Legislative Assembly, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill establishes a scheme for the portability of long service benefits in certain industries to enable workers in sectors typically characterised by high rates of contract and casual labour to qualify for and retain long service entitlements when moving between jobs in the same industry. Industries covered by the Bill are the community services sector, contract cleaning industry and security industry.

The Bill establishes the Portable Long Service Benefits Authority to administer the long service benefits scheme in covered industries, make payments of long service benefits and resolve certain disputes. All employers in covered industries will be required to register with the Authority and to provide regular reports to the Authority on their workers’ entitlements to long service benefits.

A worker in a covered industry will be entitled to long service benefits in accordance with the applicable covered industry schedule, which outlines what constitutes recognised service, how payments are to be calculated and what periods of absence will be considered days of service. Authorised officers appointed by the chairperson of the Authority will be responsible for monitoring compliance with the Bill and regulations.

Human rights issues

Right to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Obtaining and publishing personal information on registers

Division 1 of Part 3 of the Bill requires the Authority to keep an ’employers register’ and a ‘workers register’ for each covered industry. Part 3 of the Bill sets out the application processes for employers and workers to be included in the relevant register, the information to be included in each register, and the process for crediting service in a register.

Clause 12 makes it compulsory for an employer for a covered industry to apply for registration within the required period. Once registered, a range of information about the employer will be included on the employers register for the relevant industry, including the person’s name, trading name and ABN (if any), the address of the person’s principal place of business, and certain other information relevant to the person’s registration. Registered employers have an ongoing obligation to notify the registrar within 14 days of any change in the information provided to the registrar under Part 3, including whether the employer has ceased to be an employer for a covered industry. Any person may inspect the employers register and obtain a copy of an entry in the register, on payment of the prescribed fee.

Workers for covered industries may apply to be registered as a worker. If an eligible employee does not apply for registration within three months of either the commencement of clause 18, the industry becoming a covered industry or the person becoming an employee of the employer, the person’s employer must apply on their behalf. The registrar also has the power under new section 21 to register a person as a worker without an application, if the registrar becomes aware of information indicating that the person is, or was, a worker for a covered industry. Information kept on the workers registers will include the person’s name, address and date of birth, the person’s total ordinary pay, number of days of credited service, entitlement to long service benefits and details of long service benefits already taken. Unlike the employers register, the entry for each worker in a workers register may only be inspected by that worker or a person acting on their behalf.

The information collected by the registrar is limited to information necessary for or relevant to the determination of the applications and ongoing implementation of, and compliance with, the long service benefits portability scheme. Further, the publication of information about employers on a publicly accessible register serves the important purpose of promoting transparency and assisting current or future employees to access their long service entitlements under the Bill. Information on the employers register will principally be of a business nature and not of the type in relation to which persons electing to engage in a regulated industry would have an expectation of privacy. To the extent that the right to privacy is relevant to the information collected and published by the registrar under Part 3, I consider that any interference with that right is lawful and not arbitrary.

Information sharing

Under clause 28, registered employers are required to provide quarterly returns to the Authority, containing the name of each worker who performed work for the employer in the relevant quarter and their total ordinary pay and number of days of work. Failing to do so is an offence.

Clause 52 provides that the Authority may disclose information in relation to an employer’s compliance with the Bill to specified Victorian or commonwealth government entities for the purpose of the performance of a function of the entity. Information in relation to a worker’s credit for service and long service benefits may also be provided by the Authority to a reciprocal Authority for the purpose of the performance of a function of the Authority under the Bill or a function of the reciprocal Authority under a corresponding law.

Further, clause 76 permits the Minister to enter into a reciprocal agreement with the Minister of another State or Territory who administers a corresponding law in relation to long service benefits. The agreement may provide for the exchange of information about credit for service and entitlements to long service benefits between the Authority and the reciprocal Authority.

The information shared pursuant to clauses 28, 52 and 76 may include some limited personal information about workers and employers and therefore engages the right to privacy under section 13 of the Charter. However, any interference with the right to privacy occasioned by information sharing under the above provisions will be lawful and not arbitrary. These provisions serve important functions of ensuring accountability and compliance with the portability scheme and other laws, and enabling workers based in other states and territories to access their long service entitlements under reciprocal arrangements. The information must be shared for the purpose of the performance of a function of the relevant entity. Finally, I note that members of staff of the Authority and others are prohibited from making improper use of any information acquired in the course of their duties to obtain any advantage.

Compliance and enforcement powers of authorised officers

Division 3 of Part 6 of the Bill provides for the appointment of authorised officers and the powers of authorised officers to monitor compliance with the Bill and the regulations. For the purpose of monitoring compliance, an authorised officer may require a person to provide any information or documents in the person’s custody or control. Such a requirement must be made by written notice, giving the person a reasonable period to comply. Failure to comply with this notice without reasonable excuse is an offence. An authorised officer may inspect, make copies of and take extracts from any document produced.

The powers of authorised officers under the Bill are subject to a number of safeguards. Authorised officers must produce their identity card for inspection prior to exercising a power under the Bill, and at any time during the exercise of a power if requested.

Authorised officers are subject to the Authority’s directions in the performance of their functions and may only request information or documents for the purpose of determining whether there has been compliance with the Bill. Further, clause 64 protects the confidentiality of information acquired by an authorised officer by prohibiting authorised officers from giving such information to any other person except to the extent necessary to monitor compliance with the Bill and the regulations, and in certain, confined circumstances. Another protection is the explicit preservation of the privilege against self-incrimination, with a limited abrogation in relation to the production of documents required to be kept under the Bill (discussed below). This means that it will be a reasonable excuse to refuse or fail to produce documents or provide information if doing so would tend to incriminate the person.

In my view, while the exercise of these compliance and enforcement powers may interfere with the privacy of an individual in some cases, any such interference will be lawful and not arbitrary. As noted above, the purpose of the powers in clause 62 is to ensure that employers in covered industries are complying with their obligations under the Bill and that workers in these industries receive the long service benefits to which they are entitled. It is reasonable that registered employers and workers can be required to produce information and documents for compliance purposes.

I note that the provisions above may also engage the right to freedom of expression under section 15 of the Charter, which may include a right not to impart information. However, in my view, these provisions enable appropriate oversight and monitoring of compliance with the Bill, and are reasonably necessary to protect workers in covered industries. Therefore, to the extent that the freedom of expression is engaged, these provisions fall within the exception to the right in section 15(3) of the Charter, as reasonably necessary to respect the rights of other persons.

Right to property

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

Where a document is produced in response to a request under clause 62, discussed above, clause 63 provides that the authorised officer may retain the document for the period necessary to monitor compliance with the Bill and the regulations. This power engages the right to property in section 20, but does not limit it. In addition to the safeguards mentioned above in the context of the right to privacy, further limitations on the power apply. Documents may only be retained for the period necessary to monitor compliance with the Bill and must be made accessible to the person otherwise entitled to possession to inspect, make copies or take extracts from it.

To the extent that clause 63 could be considered to deprive a person of property, any such interference will be appropriately confined and tailored to ensuring compliance with the Bill. I therefore consider these provisions to be compatible with the right to property under section 20 of the Charter.

Presumption of innocence

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Prosecution of offences under the Act

Under clause 65, it is an offence for an employer to take adverse action against a worker because the worker is entitled to long service benefits, seeks to exercise that entitlement, makes an enquiry as to their entitlement to long service benefits, or applies to the Authority for a determination as to the taking of long service leave. This is analogous to section 340 of the Fair Work Act 2009 (Cth), which prohibits a person from taking adverse action against another person because the other person has a workplace right, exercises a workplace right or proposes to exercise a workplace right. It is also consistent with relevant protections under the Equal Opportunity Act 2010.

In a proceeding for an alleged contravention of clause 65, the employer bears the onus of proving that the adverse action taken against a worker was not actuated by any of the four reasons above. This is consistent with the rebuttable presumption in section 361 of the Fair Work Act, which states that where an application is made alleging that a person took adverse action for a particular reason or with a particular intent, it is presumed that the action was taken for that reason or with that intent unless the person proves otherwise.

This reversal of the onus of proof is a long-standing feature of the freedom of association and unlawful termination protections in the fair work regime and recognises that, in the absence of such a clause, it would often be extremely difficult, if not impossible, for a worker to establish that an employer acted for an unlawful reason. It is appropriate for the employer to bear the burden of proof in these circumstances because it relates to evidence which will be peculiarly within their knowledge. Further, the standard of proof will be on the balance of probabilities, which the employer will be able to discharge if there was a legitimate reason for the action.

Clause 28 makes it an offence for a registered employer to fail to provide a quarterly return to the Authority within the time allowed. In a proceeding for an alleged contravention of clause 28, clause 74 provides that a certificate signed by the registrar stating whether the registrar had allowed the person an extension of time or whether the person had given a quarterly return to the registrar on or before a particular date, is evidence of the matters certified. Clause 74 may be relevant to the right to be presumed innocent in section 25(1) of the Charter, to the extent that it requires a person to contradict that evidence if they consider it to be incorrect. However, in my view this does not limit the right to be presumed innocent. The purpose of this provision is to streamline prosecutions and to ensure that cost and delay are not increased by requiring evidence to be led about matters of timing. The matters that can be certified are non-controversial, and an accused may still lead evidence to the contrary challenging the evidence that is certified.

‘Reasonable excuse’ exceptions

Two provisions in the Bill create offences that contain a ‘reasonable excuse’ exception, which may be seen to place an evidential burden on the accused.

Under clause 67 of the Bill, it is an offence for a person to make, without reasonable excuse, any false or misleading statement in, or any material omission from, a long service record. Clause 68 of the Bill makes it an offence for a person to fail to comply with a notice to produce documents or provide information under clause 62 without reasonable excuse.

By creating a ‘reasonable excuse’ exception, the offences in clauses 67 and 68 may be viewed as placing an evidential burden on the accused, in that they require the accused to raise evidence of a reasonable excuse. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence. I do not consider that an evidential onus of this kind limits the right to be presumed innocent, and courts in other jurisdictions have taken this approach.

Deemed criminal liability for officers of bodies corporate

Clause 72 provides that if a body corporate commits an offence against certain provisions, including clauses 65, 67 and 68 referred to above, an officer of the body corporate also commits that offence if the officer authorised or permitted the commission of the offence, or was knowingly concerned in any way (by act or omission) in the commission of the offence. This is relevant to the presumption of innocence as the provision may operate to deem as ‘fact’ that an individual has committed an offence based on the actions of the body corporate. Under clause 72, officers may rely on a defence that would be available to the body corporate if it were charged with the offence and bear the same burden of proof as the body corporate in doing so.

As discussed above, some of these offences contain reverse onus provisions. In my view, it is appropriate to extend these offences and reverse onus provisions to officers of bodies corporate. A person who elects to undertake a position as an officer of a body corporate accepts that they will be subject to certain requirements and duties in relation to workers, including a duty to ensure that the body corporate does not commit offences. In my view, clause 72 does not limit the right to the presumption of innocence as the prosecution is still required to prove the main elements of the offence — that is, that the officer authorised or was knowingly concerned in the commission of the offence. Courts in other jurisdictions have held that protections on the presumption of innocence may be subject to limits particularly in the context of compliance offences. Further, any limits imposed by the relevant reverse onus provisions are justifiable for the reasons set out in relation to those provisions above. Accordingly, I am satisfied that this provision is compatible with the right under the Charter to the presumption of innocence.

Right to protection against self-incrimination

Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.

The right in section 25(2)(k) of the Charter is relevant to clause 69, which provides that it is not a reasonable excuse for a person to refuse or fail to produce a record or document that the person is required to keep under the Bill. This is therefore a limited abrogation of the privilege against self-incrimination because a document required to be produced may contain evidence that would tend to incriminate the person with respect to certain offences under the Bill.

The privilege against self-incrimination generally covers the compulsion of any information or documents which might incriminate a person. However, the application of the privilege to pre-existing documents is considerably weaker than that accorded to oral testimony or documents that are required to be brought into existence to comply with a request for information. I note that some jurisdictions have regarded an order to hand over existing documents as not engaging the privilege against self-incrimination. The primary purpose of this limited abrogation is to facilitate compliance with the scheme by assisting authorised officers to access information and evidence that may be difficult or impossible to ascertain by alternative evidentiary means. Taking into account the protective purpose of the Bill, there is significant public interest in ensuring that employers for covered industries are operating in compliance with the provisions of the Bill and the regulations.

Any limitation on the right in section 25(2)(k) that is occasioned by the limited abrogation is directly related to its purpose. The documents that an authorised officer can require to be produced are those necessary for the purpose of monitoring compliance with the Bill or regulations. Importantly, the requirement to produce a document to an authorised officer does not extend to having to explain or account for the information contained in that document. If such an explanation would tend to incriminate, the privilege would still be available. Further, clauses 67 and 68 of the Bill create an obligation for employers for a covered industry to keep a written record for each worker, and to produce it to an authorised officer upon request. The duty to provide those documents is consistent with the reasonable expectations of persons who employ workers eligible for long service benefits. Moreover, it is necessary for the Authority to have access to documents to ensure the effective administration of the scheme.

There are no less restrictive means available to achieve the purpose of enabling authorised officers to have access to relevant documents. To excuse the production of such documents where a contravention is suspected would allow persons to circumvent the record-keeping obligations in the Bill and significantly impede authorised officers’ ability to investigate and enforce compliance with the scheme. Any limitation on the right to protection against self-incrimination is therefore appropriately tailored and the least restrictive means to achieve the regulatory purpose.

For the above reasons, I consider that to the extent that clause 69 may impose a limitation on the right against self-incrimination, that limitation is reasonable and justified under section 7(2) of the Charter.

Right not to be punished more than once

Section 26 of the Charter provides that a person has the right not to be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. Where an employer for a covered industry has been found guilty of failing to apply for registration within the period required by clause 12, the court may order the employer to apply for registration and to pay the Authority the amount that would have been payable had the person complied with the Bill. Clause 59 provides that if an employer for a covered industry has been found guilty of an offence and has failed to pay a levy in relation to a worker, the court may order the employer to pay the worker for any shortfall.

Further, where a person who is not an employer has been found guilty of a specified offence, such as failing to provide a quarterly return to the Authority and taking adverse action against a worker, and the worker has received less than they were entitled to as a result, the court may order that person to compensate the worker for the difference. In each case, the order for payment will be in addition to imposing a penalty for the offence.

The right not to be punished more than once has been interpreted as applying only to punishments of a criminal nature and does not preclude the imposition of civil consequences for the same conduct. I do not consider the consequences under clauses 12 or 59 to be punitive so as to engage section 26. Their purpose is not to punish the convicted person, but to put the worker in the position that the worker would have been in but for the employer’s breach. These provisions are therefore targeted at, and consistent with, the purpose of establishing the long service benefits portability scheme.

Accordingly, I am of the opinion that clauses 12 and 59 are compatible with the right in section 26 of the Charter.

Hon. Natalie Hutchins, MP
Minister for Industrial Relations