EXPLANATORY STATEMENT
(Issued by the authority of the Fair Work Ombudsman)
Fair Work Act 2009
Direction to Inspectors
Background
By reason of subsection 700(1) of the Fair Work Act 2009 (FW Act), the Fair Work Ombudsman is empowered to appoint Fair Work Inspectors.
Under subsection 704(1) of the FW Act, Fair Work Inspectors, in the performance of their functions or the exercise of their powers as Fair Work Inspectors, are required to comply with directions made by the Fair Work Ombudsman.
Prior to the enactment of the FW Act, Part 6 of the Workplace Relations Act 1996 (WR Act) contained provisions relating to the appointment of workplace inspectors. Under Part 6 of the WR Act, workplace inspectors were required, in the exercise of powers and the performing of functions, to comply with directions made by the Workplace Ombudsman under Legislative Instrument F2007L02341. By reason of the repeal of Part 6 of the WR Act by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the Workplace Ombudsman no longer has that power.
These Directions will revoke and replace Legislative Instrument F2007L02341 to reflect the repeal of the WR Act, the enactment of the FW Act and the creation of the Office of the Fair Work Ombudsman as a Statutory Agency.
Consultation
No consultation was undertaken pursuant to section 17 of the Legislative Instruments Act 2003 because these Directions are unlikely to have a direct or substantial indirect, effect on business and are unlikely to restrict competition. The Directions are technical in nature and do not substantially alter existing arrangements.
Notes on clauses
Clause 1
This clause specifies when the Directions will commence. The Directions will commence on the day that they are registered on the Federal Register of Legislative Instruments.
Clause 2
This clause is a formal definitions provision. It provides definitions for commonly used words and phrases in the Directions. The Directions no longer defines 'SES officer'.
Clause 3
This clause applies to litigation action commenced or intervened in by Fair Work Inspectors. The clause requires Fair Work Inspectors, before commencing or intervening in litigation, to comply with relevant Guidance Notes, be satisfied that there is sufficient evidence and it is the public interest to commence litigation, and obtain the consent of the Fair Work Ombudsman or an authorised member of the staff of the Office of the Fair Workplace Ombudsman.
Overview
The Fair Work Act 2009, enacted by the Australian Parliament, aimed to create a modern, fair and flexible workplace relations framework to address problems in the previous system. The Act introduced the Fair Work Ombudsman and Fair Work Inspectors to enforce workplace laws and ensure compliance. The Directions to Inspectors, a legislative instrument issued under the Act, specifies the conditions and requirements for Fair Work Inspectors in exercising their functions and powers. These Directions, which revoke and replace earlier provisions from the Workplace Relations Act 1996, reflect the transition from the previous system to the new framework established by the Fair Work Act. The policy objective of these Directions is to provide clarity and guidance to Fair Work Inspectors, ensuring they operate within the legal framework and in the public interest.
Scope and Application
The Fair Work Act 2009 Directions to Inspectors, as detailed in F2009L02679, pertain to the Fair Work Inspectors appointed under the Fair Work Act. These inspectors, who are tasked with enforcing and overseeing compliance with the Fair Work Act, must adhere to specific directives issued by the Fair Work Ombudsman. This legislative instrument aims to replace and update the previous provisions under the Workplace Relations Act 1996, reflecting the changes brought about by the Fair Work Act and the establishment of the Fair Work Ombudsman's office. The Directions ensure that Fair Work Inspectors follow the updated regulatory framework and guidelines when performing their duties, including initiating litigation, which requires compliance with relevant guidance notes, verification of sufficient evidence, public interest considerations, and obtaining consent from the Fair Work Ombudsman or an authorised office member. The Directions apply nationally, covering all Fair Work Inspectors operating within Australia, and they do not require consultation due to their technical nature and minimal impact on business or competition.
Key Provisions
The Fair Work Act 2009 (FW Act) provides a framework for the regulation of workplace relations in Australia. Among its provisions, the Act empowers the Fair Work Ombudsman to appoint Fair Work Inspectors, who are tasked with enforcing the Act's provisions. Under subsection 704(1) of the FW Act, these Inspectors must adhere to directions issued by the Fair Work Ombudsman when executing their duties. This legislative instrument, F2009L02679, outlines the specific directions for these Inspectors, replacing previous legislative instruments that pertained to workplace inspectors under the repealed Workplace Relations Act 1996 (WR Act).
The operative sections of this instrument are primarily concerned with the directives for Fair Work Inspectors when they engage in litigation. Section 3 of the Directions mandates that Inspectors must follow relevant Guidance Notes before initiating or intervening in litigation. This means they need to ensure they have sufficient evidence and that it is in the public interest to proceed with the legal action. Additionally, Inspectors must obtain the consent of either the Fair Work Ombudsman or an authorised member of the Office of the Fair Work Ombudsman. This requirement underscores the importance of oversight and authorisation in legal proceedings initiated by Inspectors.
The Directions impose several obligations on the parties involved. Fair Work Inspectors are required to comply with any directions issued by the Fair Work Ombudsman, ensuring that their actions align with the objectives of the FW Act. They must also ensure that the evidence supporting their decision to engage in litigation is robust and that their actions are in the public interest. Furthermore, Inspectors must obtain the necessary consent from the Fair Work Ombudsman or an authorised officer before taking any legal action. These obligations are designed to maintain accountability and ensure that legal actions taken by Inspectors are justified and properly authorised.
The Act does not explicitly outline specific offences, penalties, or consequences for non-compliance with these directions within this legislative instrument. However, the overarching provisions of the FW Act do provide for various civil and criminal penalties for breaches of workplace laws. For instance, individuals or entities found to be in breach of the Act may face substantial financial penalties, and in some cases, imprisonment. The exact penalties depend on the nature and severity of the breach, but the Act allows for significant enforcement action to ensure compliance with its provisions.