Tess Hardy

Enrolling non-state actors to improve compliance with minimum employment standards

While the extent of employer non-compliance with minimum employment standards has yet to be decisively determined in Australia, there is evidence to suggest that it is both prevalent and persistent. This article draws on the scholarship emerging from the regulatory studies field to explore the underlying impulses and issues that may have led to this compliance gap. It considers how a more pluralistic and decentred understanding of regulation may improve compliance. This understanding is then applied to examine the various ways in which the federal labour inspectorate — the Fair Work Ombudsman — has sought to supplement and strengthen its existing compliance and enforcement mechanisms by harnessing or ‘enrolling’ non-state stakeholders, such as employer associations, trade unions, top-level firms and key individuals.

Mandate, Discretion and Professionalisation in an Employment Standards Enforcement Agency: An Antipodean Experience

In recent years there has been a resurgence of scholarly interest in the operation and effect of labour inspectorates around the world. This article aims to contribute to this mounting comparative and socio-legal literature by considering the emergence of an active and high profile enforcement agency in Australia – the Fair Work Ombudsman (FWO). Drawing on the experiences of inspectors and senior managers at the FWO, we examine the structure and mandate of the agency, as well as the discretion afforded to, and the professionalisation of, individual inspectors. While some have sought to draw a distinction between a rule-bound, specialised approach characteristic of certain “Anglo-American” countries and the so-called “Franco-Iberian” model, which places a greater emphasis on flexibility and pragmatism, we found that the FWO does not necessarily fit neatly within this dichotomy. Rather, we observe that as the FWO is a new institution, its mode of operation is in the process of evolution. At present it is pluralistic, in the sense that it exhibits a hierarchical, procedural approach in a drive to address concerns of consistency and accountability, while at the same time allowing, and sometimes encouraging, individuals to be experimental and adaptive.

Chain reaction: A strategic approach to addressing employment noncompliance in complex supply chains

There is an emerging consensus that targeting the direct employer of workers in enforcement action may be both inefficient and ineffective in achieving compliance with employment standards. This article explores some new and innovative ways that the Australian employment standards enforcement agency – the Office of the Fair Work Ombudsman (FWO) – has sought to address the problem of employment non-compliance in complex supply chains. In particular, we examine three distinct mechanisms used by the FWO, namely: supply chain litigation, enforceable undertakings and proactive compliance deeds. We argue that these initiatives illustrate the way in which regulatory agencies can better target their resources and maximise the general deterrence of enforcement action by focusing not only on the direct employer, but on those firms which are in a position to influence compliance behaviour more broadly.

Too soft or too severe?: Enforceable undertakings and the regulatory dilemma facing the fair work ombudsman

This article reports on the use of enforceable undertakings by the Australian employment standards enforcement agency, the Office of the Fair Work Ombudsman (FWO), and its predecessor, the Workplace Ombudsman. Enforceable undertakings are used by the FWO as an alternative enforcement tool to court litigation in relation to breaches of the Fair Work Act 2009 (Cth), which regulates wages, working hours and other minimum employment conditions. Proponents of enforceable undertakings argue that they deliver value to regulatory agencies as a responsive alternative to traditional, punitive enforcement action. On the other hand, critics have raised concerns about the accountability and effectiveness of this enforcement tool. The authors provide a critical analysis of the FWOs use of enforceable undertakings, including consideration of the decision-making process, content, monitoring and enforcement of undertakings. The analysis is based on a review of all enforceable undertakings concluded in the period from 1 July 2008 to 30 June 2012, as well as qualitative interviews with approximately 60 inspectors, managers and lawyers of the FWO, and a number of specialist workplace relations lawyers. The article reveals that the FWO has made limited but promising use of enforceable undertakings in the review period. Through deployment of enforceable undertakings, the FWO has demonstrated that it has a mix of regulatory approaches available to it that are consistent with the key principles of responsive regulation. The number of enforceable undertakings accepted by the FWO, however, remains fairly limited. We set out a number of ways in which the regulator may maximise the utilisation of enforceable undertakings, and more fully realise the regulatory benefits of this particular compliance tool.

Good Call: Extending Liability for Employment Contraventions Beyond the Direct Employer

1 Senior Lecturer, Melbourne Law School. 2 Unless otherwise specified, the terms ‘employment standards’ or ‘workplace standards’ are used to refer to the regulation governing minimum rates of pay, hours of work, and leave and termination entitlements, including by way of the Fair Work Act 2009 (Cth), modern awards and enterprise agreements. 3 See, for example, Senate Education and Employment References Committee, Inquiry into the Impact of Australia’s Temporary Work Visa Programs on the Australian Labour Market and on the Temporary Work Visa Holders (Final Report, 17 March 2016); Caro Meldrum‐Hanna and Ali Russell, ‘Slaving Away’, Four Corners, 4 May 2015; Adele Ferguson and Klaus Toft, ‘7-Eleven: The Price of Convenience’, Four Corners, 31 August 2015. Good Call: Extending Liability for Employment Contraventions Beyond the Direct Employer