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. 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.
These Directions will revoke and replace both Legislative Instrument F2009L02679 and Legislative Instrument F2007L02341.
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 Commonwealth Parliament, was introduced to establish a fair work system that balances the interests of employees, employers, and the community. The Act addresses gaps in the previous legislative framework, particularly by enhancing protections for employees and streamlining the processes for resolving workplace disputes. One of the key provisions of the Fair Work Act is the authority for the Fair Work Ombudsman to appoint Fair Work Inspectors and issue directions to them, as outlined in the Explanatory Statement for Legislative Instrument F2009L03487. This legislative instrument revokes and replaces previous directions issued under the Workplace Relations Act 1996, ensuring that the Fair Work Inspectors comply with updated guidance and procedures aligned with the objectives of the Fair Work Act. The policy objective behind these Directions is to maintain effective oversight and enforcement of workplace laws, ensuring that Inspectors act in accordance with the public interest and possess sufficient evidence before initiating litigation.
Scope and Application
The Fair Work Act 2009, under the authority of the Fair Work Ombudsman, authorises the appointment of Fair Work Inspectors who are required to adhere to directions issued by the Ombudsman as stipulated in subsection 704(1) of the Act. The Directions issued under this Act replace previous legislative instruments F2009L02679 and F2007L02341, governing the conduct of inspectors when performing their functions or exercising their powers. These Directions apply to Fair Work Inspectors and govern their actions in litigation, mandating compliance with relevant guidance notes, ensuring sufficient evidence and public interest before initiating litigation, and requiring the consent of the Fair Work Ombudsman or an authorised office staff member. These Directions do not extend to situations where the Fair Work Ombudsman consults with the Workplace Ombudsman, as such instances are preserved by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Directions commence on the date of their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Fair Work Act 2009 provides that Fair Work Inspectors must comply with directions made by the Fair Work Ombudsman (section 704(1)). This legislative instrument establishes new directions for these Inspectors, superseding previous ones under both the Fair Work Act and the Workplace Relations Act 1996. The new Directions set out the specific requirements and obligations for Inspectors when they are to commence or intervene in litigation. Before initiating or joining any legal action, Inspectors must ensure they have followed the relevant Guidance Notes, confirm that there is sufficient evidence, and that it is in the public interest to proceed with the litigation (section 3). Additionally, Inspectors are required to obtain the consent of either the Fair Work Ombudsman or an authorised member of the staff of the Office of the Fair Work Ombudsman (section 3).
The Fair Work Inspectors are obligated to adhere to several key requirements when considering litigation. Firstly, they must ensure that any litigation is in accordance with the Guidance Notes provided by the Fair Work Ombudsman. This ensures a consistent approach to litigation and helps maintain the integrity of the legal processes overseen by the Fair Work Inspectors. Secondly, Inspectors must be satisfied that there is sufficient evidence to support the litigation, ensuring that actions are not taken frivolously or without merit. Thirdly, Inspectors need to consider whether the litigation is in the public interest, which involves weighing the potential benefits of the litigation against any possible detriments. Finally, Inspectors must obtain the consent of either the Fair Work Ombudsman or an authorised member of the staff of the Office of the Fair Work Ombudsman before proceeding with litigation. This step ensures that high-level oversight is applied to significant legal actions, maintaining accountability and proper governance within the regulatory framework.
Failure to comply with these Directions can have significant consequences. While the Fair Work Act does not explicitly state penalties for non-compliance, breaches of directions made by the Fair Work Ombudsman could potentially lead to disciplinary actions against the Inspectors involved. This may include formal reprimands, suspension, or even termination of employment. Additionally, if litigation commenced without proper authorisation is found to be improper or unjustified, it could result in legal repercussions for the Inspectors and the Office of the Fair Work Ombudsman, including potential costs awards against them. These outcomes underscore the importance of adhering to the established directions and the seriousness with which non-compliance is treated within the regulatory environment.