The Fair Work Ombudsman continues the work of the Workplace
Ombudsman in promoting and monitoring compliance with Commonwealth
The inspection power is the primary compliance tool and it is
being utilised widely and often. Fair work inspectors, appointed by
the Ombudsman, investigate and enforce compliance with applicable
awards. Employers will receive letters advising of these
inspections, many of which are randomly conducted.
This is the cornerstone of a policy which attempts to achieve
compliance by encouraging voluntary rectification of breaches where
This process of compliance audits is additional to the
established investigative role. The system continues to encourage
the making of individual complaints which can trigger an
investigation that can culminate in prosecution.
If an investigation - whether initiated by complaint or as part
of an audit - reveals a contravention an inspector may take a
number of alternative steps including,
the commencement of litigation,
the issuing of a compliance notice,
the issuing of a letter of caution,
the securing of an enforceable undertaking from the
the referral of the matter to small claims procedures [or some
other dispute resolution] " mechanism
or take no further action.
In determining whether proceedings should be commenced the
relevant considerations will include the nature and circumstances
of the alleged contravention, public interest matters such as the
level of public concern and deterrence, the impact of the
contravention, characteristics of the alleged wrongdoer and
As an alternative to prosecution the Fair Work Ombudsman may
also secure compliance through a more informal ''breach
bargaining'' procedure which involves negotiations between
the parties and the Ombudsman's office to remedy a
Ignorance or misunderstanding of minimum pay requirements is of
no assistance to employers in avoiding a prosecution. The Fair Work
Ombudsman's focus on educating employers and publication of
policy statements means that the scope for mitigating the
seriousness of any non-compliance and reduction of penalties on the
basis of ignorance of these obligations is non existent. It is
worth bearing in mind that penalties of up to $33,000 may be
imposed on companies and $6000 on individuals, for each breach [as
well as making good the shortfall in payments to the employee].
It can be expected that in those cases where a prosecution
ensues, the Fair Work Ombudsman will continue the policy of
promulgating widely the fact of the prosecution, and the amount of
any penalties imposed. There can be no doubt that this policy is
effective in exposing the risks of non compliance which should
encourage all employers to make enquiry with respect to the nature
and extent of their obligations and to conduct their own audit of
their compliance with them. This is a process we will be pleased to
assist you with.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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