This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws, a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Fair Work Ombudsman (FWO)


The Fair Work Ombudsman (FWO) is an independent statutory agency created by the Fair Work Act 2009. It has the key role of ensuring compliance with workplace laws in Australia, most notably those laws that cover wages, entitlements and working conditions.

The FWO’s functions are set out in Section 682(1) of the Act and are to:

  • promote “harmonious, productive and co-operative workplace relations”;
  • promote compliance with the Act, awards, enterprise agreements, workplace determinations and Fair Work Commission orders;
  • educate, help and advise employees, employers, government authorities and organisations in workplace matters;
  • investigate breaches of the Act;
  • start court proceedings to enforce the Act;
  • refer matters to other authorities;
  • represent parties in court or before the Commission.

The FWO can make referrals to other government agencies, such as the Department of Home Affairs in instances of visa matters for migrant workers, or the Australian Federal Police when there may be criminal conduct suspected, such as people trafficking or bribery.

The Commission, the national workplace relations tribunal, was also established under the Act, and is responsible for administering the provisions of the Act. The Commission’s role includes setting minimum wages, creating and changing awards, approving enterprise agreements and adjudicating in workplace disputes such as unfair dismissal claims, bullying and industrial action.

Non-compliance assessment

When allegations of non-compliance are received, a case assessment is conducted to determine whether the FWO has jurisdiction and whether action is in the public interest.

Public interest factors include:

  • the efficient, effective and ethical use of public resources;
  • whether vulnerable workers are involved;
  • whether there is blatant disregard of laws or repeat offending;
  • the scale or impact on workers;
  • the current state of the employment relationship;
  • the availability of reliable evidence;

Inspectors

Fair Work Inspectors appointed under the Act can exercise compliance powers to investigate suspected contraventions of the National Employment Standards, or terms of an award, enterprise agreement, workplace determination, national minimum wage order or equal remuneration order.

They can enter premises to:

  • inspect work, processes or objects;
  • interview staff;
  • order the production of records and documents;
  • make copies of documents;
  • take samples.

Notices

The FWO has the power to issues several notices under the Act.

Notice to Produce

An Inspector can issue a Notice to Produce, which requires specified documents to be produced at a specified place by a specified time. Failure to comply without a reasonable excuse can result in a fine of up to $13,320 for an individual or $66,600 for a body corporate.

FWO Notice

The FWO can apply to the AAT for an FWO Notice which requires a person to provide information, produce documents and answer questions. Failure to comply without a reasonable excuse can result in a fine of up to $133,200 for an individual.

This type of notice is sought when the FWO believes a person can provide information and documents useful to an investigation, and all other ways to gather evidence have been exhausted or are not appropriate.

Enforcement

The FWO has a range of options to enforce the Act, and the enforcement method chosen will depend on the circumstances.

Compliance Notice

An inspector can issue a Compliance Notice at any time they believe there has been a breach of the Act. This notice is used a way to address an alleged contravention instead of beginning court proceedings.

The notice directs a person to remedy the contravention or show evidence of compliance. Failure to comply with a Compliance Notice without a reasonable excuse can result in a fine of up to $6600 for an individual or $33,300 for a body corporate. The FWO can then choose whether to start litigation for the original contraventions and non-compliance with the order.

Enforceable Undertaking

At any stage of an investigation, the FWO can accept a written undertaking from a person that action will be taken to remedy a contravention. The FWO then cannot start court proceedings unless the person fails to comply with the undertaking.

Enforceable undertakings are generally accepted by the FWO in limited circumstances, such as when a person has shown full co-operation and a willingness to rectify a contravention, or when a contrition payment is offered.

Contravention Letter

An Inspector can choose to issue this written notification which advises a person:

  • of the breach of the Act;
  • that they must take specified action by a specified time to rectify the breach;
  • that they must notify the FWO of compliance action;
  • the action the FWO could take if the person fails to comply with the notice.

Infringement Notice

This notice requires payment of a penalty for non-compliance with the Act or regulations, of up to $1332 for an individual or $6600 for a body corporate. It can be issued up to 12 months after the contravention.

Litigation

This is usually reserved for the most serious cases of non-compliance, such as those involving deliberate or repeated non-compliance; the exploitation of vulnerable workers; or a reluctance to co-operate. The Act also allows the FWO to represent parties in legal proceedings if the FWO considers this will help promote compliance with the Act.

Action can be taken against anyone who contravenes their obligations under national workplace laws, including company directors, human resources managers, external agents such as accountants or labour hire companies, or franchisors.

For advice on any legal matter, please contact Armstrong Legal.

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