EXPLANATORY STATEMENT
(Issued by the authority of the Fair Work Ombudsman)
Fair Work Act 2009
Paid Parental Leave Act 2010
Fair Work (Transitional and Consequential Amendments) 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(3) 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.
On 23 March 2011, the Fair Work Ombudsman made a Direction under subsection 704(1) in the form of Legislative Instrument F2011L00683.
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. Item 15 of schedule 18 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 preserved directions given to one or more inspectors by the Workplace Ombudsman, including F2007L02341. On 31 August 2009, the Fair Work Ombudsman revoked these prior Directions and made a Direction under subsection 704(1) in the form of Legislative Instrument F2009L03487.
On 23 March 2011, the Fair Work Ombudsman revoked these prior directions and made a Direction under subsection 704(1) in the form of Legislative Instrument F2011L00683. This Direction will replace F2011L00683.
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.
Clause 3
This clause applies to litigation action commenced or intervened in by Fair Work Inspectors on behalf of the Fair Work Ombudsman.
The clause requires Fair Work Inspectors, before commencing or intervening in litigation on behalf of the Fair Work Ombudsman to:
a) comply with any Guidance Notes concerning the litigation policy of the Fair Work Ombudsman;
b) be satisfied that
- there is sufficient evidence to commence civil proceedings; and
- the facts of the matter and all the surrounding circumstances demonstrate that civil proceedings are in the public interest (including that the contraventions are not trivial or minor); and
c) obtain the consent of the Fair Work Ombudsman or an authorised member of the staff of the Office of the Fair Work Ombudsman.
Overview
The Fair Work Act 2009, enacted by the Parliament of Australia, was designed to establish a fair, flexible, and efficient workplace relations system that promotes economic prosperity and social inclusion. One of the key objectives of this legislation is to ensure the fair treatment of employees, which includes the protection of their rights and interests in the workplace. The Paid Parental Leave Act 2010 was introduced to address the gap in existing legislation by providing a national scheme for paid parental leave, thereby ensuring that employees receive a minimum level of leave and pay entitlements when they become parents or carers. The Fair Work (Transitional and Consequential Amendments) Act 2009 was enacted to make necessary amendments to ensure a smooth transition from the previous workplace relations system to the new system established by the Fair Work Act 2009. These legislative instruments collectively aim to create a fair and effective workplace relations framework that protects the rights of employees and promotes economic and social prosperity.
Scope and Application
The Fair Work (Inspectors) Direction 2011, issued by the Fair Work Ombudsman under the Fair Work Act 2009, applies to Fair Work Inspectors in their capacity as agents of the Fair Work Ombudsman. These Inspectors are required to adhere to specific directives when initiating or participating in litigation on behalf of the Ombudsman. This includes complying with the Ombudsman's litigation policy as outlined in any applicable Guidance Notes, ensuring there is adequate evidence to proceed with civil proceedings, and verifying that the proceedings are in the public interest, particularly by confirming that any alleged contraventions are not trivial or minor. Additionally, Inspectors must secure the consent of the Fair Work Ombudsman or an authorised staff member before commencing or intervening in any litigation. The geographic and jurisdictional reach of this Direction is limited to the Commonwealth, applying nationally across Australia. There are no stated exclusions or exemptions within the Direction, and it does not introduce new thresholds or substantively alter existing arrangements. The application of this Direction can be extended or modified through subordinate instruments, but such changes would need to comply with the overarching framework set by the Fair Work Act 2009.
Key Provisions
The Fair Work (Transitional and Consequential Amendments) Act 2009, through its directions, sets out specific requirements for Fair Work Inspectors when they commence or intervene in litigation on behalf of the Fair Work Ombudsman. According to section 3 of the legislative instrument F2014L01374, Inspectors must adhere to several conditions before initiating legal action. Firstly, they must comply with any Guidance Notes that pertain to the litigation policy of the Fair Work Ombudsman. Secondly, Inspectors need to ensure that there is sufficient evidence to support the commencement of civil proceedings. This involves a thorough assessment to confirm that the facts of the case and the circumstances surrounding it justify the initiation of legal action in the public interest, excluding cases where the contraventions are trivial or minor. Lastly, Inspectors must secure the consent of either the Fair Work Ombudsman or an authorised member of the Office of the Fair Work Ombudsman before proceeding with litigation. This ensures that legal actions are well-founded and authorised by the appropriate authority.
Under the Fair Work Act 2009, Fair Work Inspectors are obligated to follow the directions issued by the Fair Work Ombudsman in their roles. The directions outlined in F2014L01374 impose specific duties on Inspectors, such as ensuring compliance with the Fair Work Ombudsman's litigation policy, verifying the adequacy of evidence for litigation, and obtaining necessary consents before intervening in legal proceedings. These obligations are designed to ensure that Inspectors act within the parameters set by the Fair Work Ombudsman and that their actions are justified and aligned with the public interest.
The Fair Work (Transitional and Consequential Amendments) Act 2009 and the accompanying directions do not explicitly state specific offences, penalties, or consequences for non-compliance with the directions issued by the Fair Work Ombudsman. However, it is reasonable to infer that failure to adhere to these directions could lead to disciplinary actions, potential legal repercussions, or other consequences as determined by the Fair Work Ombudsman. Given the importance of the roles and responsibilities of Fair Work Inspectors, non-compliance could potentially impact the integrity and effectiveness of the enforcement of workplace laws and regulations.