Liberal Senator Ian Macdonald might be able to claim that rules preventing him from employing his wife in his office are in breach of the Fair Work Act.

Earlier this week Crikey reported that Macdonald was in a dispute with the Department of Finance as he was employing his wife, Lesley, in his office.

“It seems to me that the inability of my wife to receive payment is discrimination in the workplace … I have reported this to the Fair Work Ombudsman,” Macdonald said in an October 2014 letter to department secretary Jane Halton.

Macdonald suggested that the situation was “intolerable” because: “If rather than my wife, I was employing a mistress, that would be in order”.

He asked then-employment minister Eric Abetz and then-special minister of state Michael Ronaldson for what legislative backing or legal advice they had to back up this policy, but neither responded. Macdonald’s office confirmed that over a year later, the issue had not yet been resolved.

A spokesperson for Finance declined to comment on Macdonald’s case, but pointed to section 5.1.3 of the entitlements handbook for senators’ and members’ entitlements that specifically prohibits employing spouses and family members under the Members of Parliament (Staff) Act 1984. 

This doesn’t mean that Macdonald cannot employ his wife, but it means he needs to pay her directly and be responsible for all her employment arrangements and benefits. He is not permitted to employ her in the group of staff allocated to him and paid for him by the government. Macdonald has been paying Lesley directly, as is allowed; he indicated in his letter to the department that she was paid for only two days of work when she actually worked five or six days per week.

But Macdonald may be able to challenge Finance on the legality of the prohibition of hiring spouses as staffers under the Fair Work Act. Although the Fair Work Ombudsman would not comment on Macdonald’s specific case, a spokesperson told Crikey that the act specifically prevents discrimination on the grounds of marital status:

“Section 351 (2) of the Fair Work Act provides that an employer must not take adverse action against a prospective employee on grounds including the person’s marital status.”

Macdonald has said his wife is his “employee of longest standing with the greatest corporate knowledge” and his “most trusted and valuable employee”.