Fair Work Act 2009 Direction to Inspectors (November 2021)

Overview

The Fair Work Act 2009 Direction to Inspectors (November 2021) was issued by the Fair Work Ombudsman under subsection 704(1) of the Fair Work Act 2009, replacing the previous Direction F2015L01907. This Direction was enacted to streamline and ensure compliance with policies within the Office of the Fair Work Ombudsman when Fair Work Inspectors engage in litigation activities on behalf of the Ombudsman. The Direction aims to provide a clear framework for Inspectors to follow, ensuring that their actions align with the Ombudsman’s policies and obtain necessary consents before initiating or proceeding with litigation. No consultation was undertaken as the Direction was deemed unlikely to have significant effects on business or competition. The Direction incorporates the Compliance and Enforcement Policy by reference, which is available on the Fair Work Ombudsman's website and outlines the public interest considerations relevant to litigation decisions. This legislative instrument ensures that Inspectors adhere to internal policies and obtain proper authorisation, thereby maintaining the integrity and effectiveness of the Fair Work Ombudsman's enforcement activities.

Scope and Application

The Fair Work Act 2009 Direction to Inspectors (November 2021) applies to Fair Work Inspectors appointed by the Fair Work Ombudsman. These Inspectors are required to adhere to the Office of the Fair Work Ombudsman's policies and obtain the necessary consents before commencing or taking any steps in litigation. The Direction replaces a previous one and is designed to ensure compliance with the Compliance and Enforcement Policy, which outlines how the Fair Work Ombudsman performs compliance and enforcement functions under the Fair Work Act 2009. The Direction has a national reach, impacting all Fair Work Inspectors operating within Australia. The Direction does not substantially alter existing arrangements provided for in the Fair Work Act 2009 and was issued without consultation as it is unlikely to have a significant effect on business or competition. This Direction will commence on the day it is registered on the Federal Register of Legislation.

Key Provisions

The Fair Work Act 2009 Direction to Inspectors (November 2021) sets out specific requirements for Fair Work Inspectors who are appointed by the Fair Work Ombudsman and who wish to commence or take steps in litigation (Clauses 1 and 3). Firstly, these inspectors must comply with the policies of the Office of the Fair Work Ombudsman, specifically the Compliance and Enforcement Policy, which details the public interest factors considered before litigation is commenced or not (Clause 1(a) and Clause 3(a)). Additionally, Inspectors must obtain consent from the Fair Work Ombudsman or a designated authorised staff member before commencing or taking steps in litigation (Clause 1(b) and Clause 3(b)). These requirements are designed to ensure that Inspectors act in accordance with the Office's policies and that the Fair Work Ombudsman has oversight of the litigation process. The Direction imposes several obligations on the Fair Work Inspectors. These include adhering to the Compliance and Enforcement Policy, which is incorporated by reference into the Direction, and obtaining the required consents before taking any legal action (Clauses 1 and 3). Inspectors must be aware of and follow the policy, which can be accessed on the Fair Work Ombudsman's website (Clause 1 and Clause 3). Failure to comply with these obligations could result in the Inspectors acting outside the scope of their authority or without the necessary oversight, potentially undermining the integrity of the litigation process. There are no specific offences, penalties, or civil/criminal consequences outlined in the Direction itself. However, non-compliance with the Direction by Fair Work Inspectors could lead to disciplinary actions or other consequences as determined by the Fair Work Ombudsman. The Direction ensures that Inspectors act within the bounds of the Office's policies and under the appropriate oversight, thereby maintaining the integrity and effectiveness of the litigation process overseen by the Fair Work Ombudsman.