Melbourne Law School - Research Publications
Permanent URI for this collection
Search Results
1 - 8 of 8
-
ItemCriminal Liability for "Wage Theft": A Regulatory Panacea?(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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
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.
-
ItemPartners in Enforcement? The New Balance between Government and Trade Union Enforcement of Employment Standards in Australia(LexisNexis Butterworths, 2009)Historically, Australian trade unions played a significant role in the monitoring and enforcement of minimum employment standards, an important aspect of unions’ regulatory function under the conciliation and arbitration system. In contrast, federal government enforcement was historically under-resourced, a situation that was sometimes justified on the ground that unions and the government inspectorate were ‘partners in enforcement’. Under the Howard Coalition Government, legal support for trade unions’ enforcement functions was significantly undermined, while Work Choices heralded an unprecedented emphasis on federal government enforcement. The Fair Work Act 2009 (Cth) maintains this emphasis on government enforcement, to be undertaken by the Fair Work Ombudsman, and restores some of the protections for trade unions lost during the Howard years. However, the new emphasis on good faith enterprise bargaining and the continuation of restrictions on right of entry suggest that unions may become the junior partner in the new enforcement regime, making a more tripartite and collaborative approach to enforcement less viable.