Fair Work Ombudsman Announces Strategic Priorities for 2020-2021

Thursday 16 July 2020 @ 8.57 a.m. | Industrial Law | Legal Research

The Fair Work Ombudsman (the “FWO”), Sandra Parker, has announced the regulator’s strategic priorities for the year ahead in a media release. The priorities include supporting all workplaces through the COVID-19 pandemic and addressing large corporate underpayments. The FWO is re-adjusting its focus to investigate serious allegations of “serious non-compliance with workplace laws”, including complaints about JobKeeper. The regulator revealed they were fielding 50 per cent more inquiries in April 2020 compared with 2019 and as of 8 July 2020, had seen a 25 per cent increase in JobKeeper inquiries.

The 2020-2021 Priorities

The FWO indicated that fast food, restaurants and cafes, horticulture and the harvest trail, franchisors, and sham contracting will continue to be a focus of the regulator’s Compliance and Enforcement activities as well as regulating Australian workplaces significantly impacted by the COVID-19 pandemic which will require a degree of flexibility in its approach.

According to SmartCompany, corporate wage theft also remains on the regulator’s list following a spate of high-profile underpayment cases involving some of Australia’s largest businesses, including Woolworths Group and several businesses owned by the Wesfarmers conglomerate.

The FWO commented about the upcoming priorities:

“Our compliance and enforcement work will be informed by the dramatically changed economic conditions brought about by the COVID-19 pandemic, as well as the temporary amendments to the Fair Work Act [2009]. Some of our priority sectors have been seriously impacted by the pandemic and are under considerable financial strain. We are mindful that our regulatory efforts do not negatively affect already struggling industries, while also being sensitive to the nuances of each sector and the challenges each will face when recovering from disruption.”

FWO’s Approach to Enforcement

The FWO said the organisation will:

“… enforce workplace laws in a proportionate manner during the COVID-19 pandemic … regulating Australian workplaces significantly impacted by the COVID-19 pandemic requires a degree of flexibility in the approach. We are mindful that our regulatory efforts should not negatively affect already struggling industries, while also being sensitive to the nuances of each sector and the challenges each will face when recovering from disruption”.

According to the Policies and Approach document, actions will range from education, through to letters of caution, compliance notices, enforceable undertakings and in the most serious circumstances, litigation. The regulator will:

  • treat each matter on its merits;
  • exercise discernment and prudent judgment, taking account of the public interest;
  • are fair, reasonable and proportionate in all responses; and
  • make decisions based on evidence.

Education, advice, tools and resources to small business and those hardest hit by COVID-19 will also be provided. The regulator will also uphold the integrity of the JobKeeper scheme through appropriate compliance activities that resolve matters quickly and efficiently.

About the Compliance and Enforcement Policy

As outlined in Fair Work’s Compliance and Enforcement Policy (the “Policy”), the object “... is to provide simple and clear information about how the FWO performs its statutory compliance and enforcement functions under section 682 of the FW Act [Fair Work Act 2009] …”

These functions include:

  • promoting harmonious, productive and co-operative workplace relations and compliance with the FW Act and fair work instruments, including through the provision of education, assistance and advice;
  • monitoring compliance with the FW Act and fair work instruments;
  • inquiring into and investigating any act or practice that may be contrary to the FW Act, a fair work instrument or a safety net contractual entitlement;
  • commencing proceedings in a Court (or in limited circumstances making an application to the Fair Work Commission) to enforce the FW Act, a fair work instrument or a safety net contractual entitlement; and
  • referring matters to other relevant authorities where appropriate.

AFR reports the regulator would consider not taking legal action for serious underpayments, delaying backpay or adjusting “contrition payments” in any enforceable undertaking, this approach has been informally applied for the past three months but has now formally updated its Enforcement Policy to consider “the impact on business viability, service delivery and employees if excessive costs and sanctions are imposed”.

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