Melbourne Law School - Research Publications
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ItemEmerging Business Models and the Evolving Regulatory Response: Perspectives from Australia and Beyond(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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ItemMandate, Discretion, and Professionalisation in an Employment Standards Enforcement Agency: An Antipodean Experience(Wiley - John Wiley & Sons, 2013)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.
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ItemAccountability and the Fair Work Ombudsman(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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ItemEnrolling Non-State Actors to Improve Compliance with Minimum Employment Standards(Sage Publications, 2011)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.
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ItemLess Energetic but More Enlightened? Exploring the Fair Work Ombudsman's Use of Litigation in Regulatory Enforcement(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 Ombudsman(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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ItemWho Should be Held Liable for Workplace Contraventions and On What Basis?(LexisNexis, 2016)While it is generally now accepted that noncompliance with workplace laws is a pressing problem in Australia, there is far less consensus about what can be done and who should be held accountable. This article considers whether, and in what circumstances, firms beyond the direct employer should be made legally liable for workplace contraventions. By exploring alternative models of liability within Australia and beyond, the article addresses a number of conceptual and practical questions raised by third-party liability regimes. This article finds that forms of duty-based liability may hold the most promise in terms of curbing workplace contraventions in a fair and cost-effective way. In addition, it considers a number of more modest regulatory measures — such as reversing the onus of proof where employment records are apparently absent or inaccurate — which may serve to promote more effective enforcement of employment standards.
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ItemWho Should be the Super Police? Detection and Recovery of Unremitted Superannuation(University of New South Wales Law School, 2014)This article describes the range of issues surrounding unremitted superannuation contributions in insolvency and also more generally. We argue that more should be done to improve the detection and recovery of non-payments because of the importance of superannuation to both employees and the government. We contend that any model of enforcement that shifts the policing of unpaid superannuation to employees is flawed. This is true whether their employer is insolvent or not. Unfortunately, it seems to be the model that the government is increasingly embracing.
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ItemCreating Ripples, Making Waves? Assessing the General Deterrence Effects of Enforcement Activities of the Fair Work Ombudsman(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.
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ItemSuperannuation Guarantee Contributions as a Tax: The Case for Reincarnation Over Reform(Taxation Institute of Australia, 2018)The superannuation guarantee charge, which aims to ensure that employers pay compulsory superannuation for their employees, is collected as a tax. This method of collection has advantages because it covers a range of workplaces and types of businesses, including where the workers are outside of the conventional notion of employment. However, despite this, unpaid superannuation guarantee obligations remain a significant concern for government, superannuation funds, trade unions and workers themselves. Attempts to improve recovery — both legislative and procedural — have arguably been tinkering around the edges of a fundamentally misconceptualised scheme. This article suggests an alternative approach which utilises the collection mechanisms of the Fair Work Act 2009 (Cth) and the worker-focused Fair Work Ombudsman as the primary agency overseeing superannuation collection. This would see superannuation recast as “deferred wages”, recoverable in the same way as other employee entitlements. While a further referral of powers from the states to the federal government would be required — or perhaps a constitutional amendment — the article argues that reincarnating the superannuation guarantee in this way could significantly improve recovery for the benefit of workers.