- Melbourne School of Government - Research Publications
Melbourne School of Government - Research Publications
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ItemCriminal Liability for "Wage Theft": A Regulatory Panacea?Hardy, T ; Howe, J ; Kennedy, M (Monash University, 2021)In response to concerns over the growing problem of ‘wage theft’, the federal government, as well as various state governments, have committed to introducing criminal sanctions for underpayment contraventions. While policymakers and the public have largely assumed that criminal sanctions will address a perceived deterrence gap and promote employer compliance with basic employment standards, there has been far less scholarly appraisal of how this regulatory shift might shape enforcement decisions and affect compliance outcomes. Drawing on literature from criminology, as well as regulation and governance, this article evaluates a range of conceptual justifications put forward in support of criminalising certain forms of wage theft. It also considers key practical issues which may arise in a dual track system where both criminal and civil sanctions are available for the same or similar contraventions. This article concludes with some suggestions on how criminal offences might be framed in the federal system so as to optimise employer compliance and reduce regulatory tensions.
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ItemSubmission to the Fair Work Act ReviewHowe, J ; Chapman, A ; Hardy, T (Centre for Employment and Labour Relations Law, Melbourne Law School, 2012)
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ItemEmerging Business Models and the Evolving Regulatory Response: Perspectives from Australia and BeyondHardy, T ; Johnstone, R ; Howe, J (LexisNexis Australia, 2019)This Special Issue contains a selection of articles presented at a workshop, ‘Emerging Business Models and the Evolving Regulatory Response: Perspectives from Australia and Beyond’. This workshop brought together a group of scholars, policymakers and graduate students actively working on, or otherwise interested in, the broad themes of labour and employment regulation and enforcement. The workshop was held in July 2018, with the generous support of the Centre for Employment and Labour Relations Law at the University of Melbourne.
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ItemTrade Unions and the Enforcement of Minimum Employment Standards in Australia: Research ReportLandau, I ; Cooney, S ; Hardy, T ; HOWE, J (Centre for Employment and Labour Relations Law, 2014-07-01)
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ItemThe Transformation of Enforcement of Minimum Employment Standards in Australia: A Review of the Fair Work Ombudsman's Activities from 2006-2012HOWE, J ; Hardy, T ; Cooney, S (Centre for Employment and Labour Relations Law, 2014-07-01)
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ItemBusiness Responses to Fair Work Ombudsman Compliance Activities: Research ReportHOWE, J ; Hardy, T (The Centre for Employment and Labour Relations Law, 2017)
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ItemAccountability and the Fair Work OmbudsmanHardy, T ; Howe, J (Thomson Reuters, 2011)The importance of accountability has long been sheeted home to the Office of the Fair Work Ombudsman (FWO), the federal statutory agency responsible for enforcement of minimum employment standards under the Fair Work Act 2009 (Cth). In the immediate aftermath of Work Choices, the activities of the regulator were mired in controversy. In particular, the agency’s involvement in a number of high profile and hotly contested cases led to accusations that one of its predecessor agencies, the Office of Workplace Services (OWS), was politically motivated and acting as the Howard Coalition Government’s “secret police”. In light of the agency’s rather harrowing experiences in the wake of Work Choices, it is not surprising that the FWO now places a heavy emphasis on the importance of independence, transparency and accountability. Drawing on an extended concept of accountability, this article will undertake a preliminary assessment of the various accountability mechanisms which currently apply to the FWO and question whether these checks are adequate to guard against the criticisms previously levelled at the organisation.
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ItemLess Energetic but More Enlightened? Exploring the Fair Work Ombudsman's Use of Litigation in Regulatory EnforcementHardy, T ; Howe, J ; Cooney, S (The University of Sydney Law School, 2013)Since early 2006, the federal labour inspectorate, now known as the Fair Work Ombudsman ('FWO'), has been both active and innovative in promoting and enforcing employment standards. While various enforcement tools are available to the FWO, civil remedy litigation has been an especially visible aspect of the agency's compliance activities. This article surveys the litigation activities of the federal labour inspectorate from I July 2006 to 30 June 2012. We explore the extent to which litigation has fluctuated over the past six years; the types of contraventions that have been pursued; the characteristics of respondents; and any patterns in remedies and outcomes. We consider the extent to which the FWO's changing approach to litigation reflects influential approaches to regulatory enforcement, including responsive regulation and strategic enforcement. Our assessment of the data suggests that the FWO has made increasing use of civil remedy litigation and the deterrence effects of this intervention have been amplified through prominent use of media. While the agency has become bolder in its use of litigation by targeting a wider range of individuals and entities, there is still some room to seek alternative court sanctions in order to achieve greater deterrence and more sustainable compliance behaviour.
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ItemToo Soft or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work OmbudsmanHardy, T ; Howe, J (Sage Publications, 2013)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 FWO’s use of enforceable undertakings, including consideration of the decision-making process, content, monitoring and enforcement of undertakings.
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ItemCreating Ripples, Making Waves? Assessing the General Deterrence Effects of Enforcement Activities of the Fair Work OmbudsmanHardy, T ; Howe, J (Sydney Law School, 2017)This article draws on an empirical study of business responses to the regulation and enforcement of minimum employment standards in two discrete industry sectors in Australia: hairdressing and restaurants. The study aimed to critically assess the concept of general deterrence and explore key questions arising from calculative theories of compliance. In particular, this article considers the extent to which employer businesses were aware of the enforcement activities of the Fair Work Ombudsman (‘FWO’); the depth of this knowledge; and whether this knowledge affected business perceptions of enforcement risks and the subsequent compliance response. The article concludes that while firms may not recall the details of enforcement activities with any precision or accuracy, their general awareness of the FWO’s efforts in this respect has important ripple effects on risk perception and compliance behaviour.