More than underpayments and civil penalties – Taking a strategic approach to regulatory workplace relations litigation

Abstract

As the regulator established to promote, monitor and enforce compliance with the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Ombudsman (FWO) plays a critical role in testing and clarifying the application of the FW Act and taking steps to ensure the integrity of the Australian workplace relations framework. The FWO engages in a wide range of activities designed to achieve these aims. An important function includes commencing civil litigations. The FWO litigates for a range of reasons, but primarily to achieve deterrence. However, many cases brought by the FWO on new and emerging issues have also shaped areas of workplace relations law and contribute to wider compliance by the regulated community more broadly. This article explores and highlights some examples of the way the FWO has addressed emerging enforcement challenges and shaped and tested the law through litigation. These include matters relating to accessorial liability; the general protections under Part 3-1 of the FW Act; and obtaining a wider range of orders in compliance proceedings.

Keywords

Compliance enforcement Fair Work Act litigation regulator

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References

Fair Work Ombudsman Guidance Note 1, Litigation Policy of the Fair Work Ombudsman (4th ed., December 2013). Available at: https://www.fairwork.gov.au/about-us/our-role/enforcing-the-legislation/litigation (accessed 19 April 2017).

Fair Work Ombudsman (2015–2016) Annual Report 2015-2016. Available at: https://www.fairwork.gov.au/annual-report (accessed 19 April 2017).

Fair Work Ombudsman (2016) A report of the Fair Work Ombudsman’s inquiry into 7-Eleven. Available at: http://www.fairwork.gov.au/about-us/access-accountability-and-reporting/inquiry-reports (accessed 19 April 2017).

Howe J and Hardy T (2017) Business Responses to Fair Work Ombudsman Compliance Activities Research Report, Centre for Employment and Labour Relations Law, Melbourne Law School. January. Available at: http://law.unimelb.edu.au/__data/assets/pdf_file/0011/2237582/Howe-and-Hardy-Business-Response-Survey-Report-Jan-2017.pdf (accessed 19 April 2017).

Sutherland

Riley

(2016) Major court and tribunal decisions in Australia in 2015. Journal of Industrial Relations 58(3): 388–401.

Sutherland C and Riley J (2017) Major court and tribunal decisions in Australia in 2016. Journal of Industrial Relations. Epub ahead of print. DOI: 10.1177/0022185617693874.