EXPLANATORY STATEMENT
(Issued by the authority of the Fair Work Ombudsman)
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 1 October 2014, the Fair Work Ombudsman (Acting) made a Direction under subsection 704(1) in the form of Legislative Instrument F2014L01374 which replaced a previous direction in the form of Legislative Instrument F2009L03487.
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 provides that the Direction applies to persons appointed as Fair Work Inspectors under subsection 700(1) of the FW Act, in relation to the performance of functions or the exercise of powers as an inspector.
Clause 3
This clause provides a definition for commencing litigation in the Directions.
Clause 4
This clause requires Fair Work Inspectors, before commencing or intervening in litigation to:
- comply with any guidance note(s) of the Office of the Fair Work Ombudsman concerning commencing litigation; and
b. obtain the consent of the Fair Work Ombudsman or the consent of an authorised member of staff of the Office of the Fair Work Ombudsman.
Overview
The Fair Work (Inspectors) Direction 2015, enacted on 1 October 2014, was introduced to provide clarity and guidance to Fair Work Inspectors on their responsibilities and powers, particularly concerning the commencement of litigation. This legislative instrument stems from the Fair Work Act 2009 (FW Act) and was enacted by the Fair Work Ombudsman (Acting). The primary policy objective of this direction is to ensure that Fair Work Inspectors act in accordance with the Office of the Fair Work Ombudsman’s guidance when initiating legal proceedings, thereby maintaining consistency and efficiency in the enforcement of workplace laws. This direction replaces previous legislative instruments and is designed to be a technical update without significantly affecting business operations or competition.
Scope and Application
The legislation, F2015L01907, pertains to the Fair Work Act 2009, specifically targeting the appointment and direction of Fair Work Inspectors. This piece of legislation applies to individuals appointed as Fair Work Inspectors under subsection 700(1) of the Fair Work Act, focusing on their functions and powers as inspectors. The legislation mandates that these inspectors must comply with the directions issued by the Fair Work Ombudsman in accordance with subsection 704(3) of the Fair Work Act. It is pertinent to note that no consultation was undertaken in drafting these Directions, as they are deemed unlikely to have a direct or substantial indirect effect on business or restrict competition, and are purely technical in nature. The legislation does not extend or restrict its application through subordinate instruments but rather serves to clarify the procedural requirements for Fair Work Inspectors when engaging in litigation, ensuring they adhere to guidance notes from the Office of the Fair Work Ombudsman and obtain the necessary consent before proceeding.
Key Provisions
The main operative sections of this legislative instrument (F2015L01907) pertain to the directions issued to Fair Work Inspectors as outlined in Clauses 2 and 4. Under Clause 2, the Direction applies to persons appointed as Fair Work Inspectors under subsection 700(1) of the Fair Work Act 2009 (FW Act). The purpose of this clause is to ensure that Inspectors adhere to specific procedures when performing their functions or exercising their powers. Clause 4 specifically mandates that Inspectors must comply with any guidance notes from the Office of the Fair Work Ombudsman concerning commencing litigation and must obtain the consent of the Fair Work Ombudsman or an authorised member of staff before commencing or intervening in any litigation. These provisions ensure that Inspectors act in accordance with established protocols and receive proper authorisation before taking legal action.
The obligations imposed by the Act on the parties or entities it governs are primarily centred around the conduct of Fair Work Inspectors. As per Clause 4, Inspectors must adhere to the guidance notes provided by the Office of the Fair Work Ombudsman regarding litigation. This includes following any internal policies and procedures that the Office may have established to guide Inspectors in their legal activities. Additionally, Inspectors are required to obtain the explicit consent of the Fair Work Ombudsman or an authorised member of their staff before initiating or intervening in any litigation. This ensures a level of oversight and control over the Inspectors' legal actions, preventing unauthorised or improper legal proceedings.
The legislation also outlines potential consequences for non-compliance with the specified directions. Although the Explanatory Statement does not explicitly detail the penalties for breaching these provisions, under the Fair Work Act 2009, non-compliance with the directions issued by the Fair Work Ombudsman could potentially lead to disciplinary action against the Inspectors involved. This might include formal reprimands, suspension, or even termination of their employment. Furthermore, any litigation commenced without the proper consent could be subject to judicial review, potentially leading to the litigation being declared invalid or the Inspectors facing legal repercussions for misconduct. The consequences serve as a deterrent against non-compliance and ensure adherence to the established guidelines.