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(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.
On 1 July 2009, the Fair Work Ombudsman made a Direction under subsection 704(1) in the form of Legislative Instrument F2009L02679.
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. This Direction will revoke and replace 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 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 (other than those Inspectors who are also Australian Building and Construction Commission Inspectors).
The clause requires Fair Work Inspectors, before commencing or intervening in litigation on behalf of the Fair Work Ombudsman to:
- comply with relevant Guidance Notes concerning the litigation policy of the Fair Work Ombudsman;
- 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.
Clause 4
This clause applies in respect of litigation action concerning building industry participants commenced or intervened in by Fair Work Inspectors who are also Australian Building and Construction Commission Inspectors under the Fair Work Act 2009 and related legislation. This clause requires Fair Work Inspectors who are also Australian Building and Construction Commission Inspectors to comply with the Direction of the Australian Building and Construction Commissioner made on 28 February 2011.
Overview
The Fair Work (Inspectors Directions) Instrument 2011 (F2011L00683) was enacted to streamline and clarify the directives governing Fair Work Inspectors, appointed under the Fair Work Act 2009. This legislative instrument aims to address the procedural gaps that existed in the transition from the Workplace Relations Act 1996 to the Fair Work Act, ensuring a consistent and effective regulatory framework. The instrument was issued by the Fair Work Ombudsman, an entity created to enforce and ensure compliance with the Fair Work Act. The primary policy objective is to maintain orderly and effective enforcement of workplace laws by ensuring that inspectors are clearly guided in their duties, particularly concerning the initiation of litigation on behalf of the Fair Work Ombudsman.
The Directions revoke previous legislative instruments and establish updated protocols for Fair Work Inspectors, specifying the need for compliance with relevant guidance notes, ensuring sufficient evidence and public interest for litigation, and obtaining necessary consents from the Fair Work Ombudsman or authorised staff. This update is crucial in harmonising the regulatory responsibilities of inspectors under the new legislative framework, thus supporting the overarching goals of the Fair Work Act in promoting fair and equitable workplace practices.
Scope and Application
The Fair Work (Inspectors Directions) Instrument 2011 (F2011L00683) applies to Fair Work Inspectors appointed under the Fair Work Act 2009, specifying the procedures and requirements they must follow when initiating or intervening in litigation on behalf of the Fair Work Ombudsman. This includes Inspectors who are not also Australian Building and Construction Commission Inspectors, who must comply with certain guidelines and obtain the necessary consents before taking legal action. The Act applies to all individuals serving as Fair Work Inspectors within the Commonwealth jurisdiction, ensuring that their actions in legal matters are governed by specific directives to maintain consistency and adherence to the Fair Work Ombudsman's policy. The legislation does not apply to Inspectors who are also Australian Building and Construction Commission Inspectors when it comes to litigation involving building industry participants, as they are governed by separate directions from the Australian Building and Construction Commissioner.
Key Provisions
The key provisions of the Fair Work (Transitional and Consequential Amendments) Act 2009 outline the transitional arrangements and amendments necessary to align the new Fair Work Act 2009 (FW Act) with existing workplace inspectorate directions and legislation. Under clause 3 (subsection 704(1) of the FW Act), Fair Work Inspectors must adhere to specific guidelines before initiating or intervening in litigation on behalf of the Fair Work Ombudsman. These guidelines include complying with relevant guidance notes, ensuring there is adequate evidence and that it is in the public interest to commence litigation, and obtaining the consent of the Fair Work Ombudsman or an authorized member of the Fair Work Ombudsman's office. Meanwhile, clause 4 (subsection 704(1) of the FW Act) pertains to litigation involving building industry participants, requiring Fair Work Inspectors who are also Australian Building and Construction Commission Inspectors to follow the directions issued by the Australian Building and Construction Commissioner on 28 February 2011.
The Act imposes certain obligations and requirements on Fair Work Inspectors, ensuring they operate within the legal framework established by the Fair Work Ombudsman. Inspectors are mandated to comply with all relevant guidance notes and policy directives concerning the Fair Work Ombudsman's litigation strategy. Additionally, they must verify that sufficient evidence supports the litigation and that it aligns with the public interest. Inspectors must also secure the necessary consent from the Fair Work Ombudsman or an authorized staff member before initiating or intervening in litigation. These obligations are designed to maintain consistency and legality in the actions taken by inspectors on behalf of the Fair Work Ombudsman.
Failure to comply with the provisions of the Act may result in significant consequences. While the Act does not explicitly state civil or criminal penalties for non-compliance, violations of the directions could lead to disciplinary action, potential litigation, or other administrative penalties imposed by the Fair Work Ombudsman. Inspectors who fail to adhere to the stipulated guidelines may find themselves subject to review or investigation, which could impact their professional standing and the credibility of the Fair Work Ombudsman's office. The overarching intent is to ensure that all actions taken by inspectors are lawful, transparent, and in the public interest.