Melbourne Law School - Research Publications
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ItemTrade Unions and the Enforcement of Minimum Employment Standards in Australia: Research Report(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 2006-2012(Centre for Employment and Labour Relations Law, 2014-07-01)
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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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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.