The Fair Work Ombudsman- Friend or Foe?
The Fair Work Ombudsman (FWO) is an independent regulatory agency established under the Fair Work Act (2009) (Act), whose role is to monitor, enquire into, investigate and enforce compliance with Australia’s workplace laws. In short it is one arm of the workplace relations system whose purpose is to ensure that Australian employers understand their statutory obligations with respect to –
Terms and conditions of employment;
Workplace rights; freedom of association; sham contracting;
Right of entry;
Unprotected industrial action; and
How do they carry out their role?
FWO employs a large number of Workplace Inspectors whose function is to conduct compliance audits; investigate workplace complaints; prosecute contraventions of various workplace laws through the courts.
For many years the FWO with the assistance of the Australian Building and Construction Commission (ABCC) focused its efforts on the building industry with a particular reference to the operations of the construction unions (CFMEU and AMWU). More recently however we have seen inspectors focus in on the soft underbelly of the workplace, namely small business. The small business sector somewhat perversely, contributes over a one third of Australia’s GDP, made up of some twenty thousand enterprises.
So it is an almighty contributor to the wealth of the nation.
Unfortunately many of these businesses are unsophisticated with little or no understanding of their employment obligations. Typically they employ staff under the wrong awards, wrongly classify employees as contractors; pay their people incorrectly particularly in relation to matters such as overtime; shift work; various allowances; weekend penalty rates and the like.
As a result we regularly see these businesses taken through the courts, severely penalised both at a corporate and personal level (Directors and HR managers); and being required to embrace Enforceable Undertakings. A snapshot reveals a litany of sorrow across this sector with 7 – Eleven ($7M in fines and underpayments); famous MasterChef host George Calombaris ($4m);
Pizza Hut ($200K) just a few examples. The list is almost endless.
Lessons for the events sector
Decisions to employ people have consequences, if your contract of employment is poorly crafted it may come back to hurt you. If you employ someone under the wrong award, it most certainly will affect your business down the track. When employing people seek appropriate advice, don’t become a bush lawyer for a day, because it will hurt you.
If you have concerns about your record keeping, award coverage, contracts of employment, now may be the time to seek advice as the FWO continues to focus on the activities of small business and specifically their compliance with our workplace laws.
EIA members are invited to contact Mike Baldwin on 08 9321 3755 for an obligation free discussion.