Practical impacts of the Fair Practical impacts of the Fair Work Ombudsman’s combined Work Ombudsman’s combined

agency powers and new agency powers and new discrimination jurisdictiondiscrimination jurisdiction

Presentation for the 8th Annual Workforce Conference

21 September 2009

Natalie James Chief Counsel

Fair Work Ombudsman

Promotes harmonious, productive and cooperative workplace relations and compliance with workplace rights, including by providing: education, assistance and advice, and producing Best Practice Guides

The Fair Work OmbudsmanThe Fair Work Ombudsman

• Advice• Compliance• Education

3

Things you need to know Things you need to know about the Fair Work about the Fair Work OmbudsmanOmbudsman3

• 26 offices across Australia• Last year:

– More than $32 million recovered for about 28,000 workers

– 78 matters went to court, resulting in $1.6 million in penalties

The Fair Work Ombudsman In The Fair Work Ombudsman In ActionAction

•Have achieved high penalties, including one for $288,000

•Over the next 12 months we expect to:–complete 26,000 investigations–Respond to 1.4 million phone enquiries–undertake 5500 targeted audits–Commence up to 80 matters in court–Record up to 1.6 million hits on the website

LitigationLitigation

New LegislationNew Legislation• Good faith bargaining

• Small Business Fair Dismissal Code

• General protections– Including protection against discrimination in the

workplace

• The National Employment Standards (from 1 Jan 2010)

• Modern awards (from 1Jan 2010, with phased introduction of pay related entitlements)

• Unlawful discrimination that results in “adverse action” can be investigated

• Includes discrimination on the basis of:– Race; colour; sex; sexual preference; age; physical or

mental disability; marital status; family or carer’s responsibilities; pregnancy; religion; political opinion; national extraction; social origin

• The first eight weeks – what we have discovered so far

DiscriminationDiscrimination

• Complaints can be made online or by post

• If a complaint is made: the employer must prove they did not discriminate

• Court may make an order it considers appropriate, including injunctions, compensation, reinstatement

• Court penalties: $6,600 for an individual and $33,000 for a company

• The Fair Work Ombudsman is committed to educating and informing employers about how to avoid discrimination

Fixing DiscriminationFixing Discrimination

• Discrimination on the grounds of pregnancy– Refused maternity leave

– Position no longer available and no alternative job provided

– Employment terminated during maternity leave

• The Fair Work Ombudsman can investigate as this action contravenes section 351 of the Fair Work Act

Discrimination – case studyDiscrimination – case study

• The Fair Work Ombudsman will provide education, assistance and advice to employees, employers, outworkers, outworker entities and organisations

• The Fair Work Education and Information Program

• New educational services include:– A series of Best Practice Guides

– The Fair Work Infoline and Fair Work Online

– The Fair Work Ombudsman Education team

EducationEducation

• Fair Work Online website contains:– Fact sheets, and templates for record keeping and

payslips

– Best practice guides

• Can be accessed at: www.fairwork.gov.au

• Fair Work Infoline (13 13 94) is a central point of contact for access to information and assistance on workplace relations

• An estimated 1.4 million calls will be taken this financial year

Fair Work OnlineFair Work Online

• A dedicated Education Team

• Assists small to medium sized enterprises to understand and implement better workplacepractices

• Provides tools, information and services

Education and Small Business

Responses to Non ComplianceResponses to Non Compliance

Flexible delivery of compliance responses: – Voluntary Compliance– Enforceable Undertakings – Civil Penalty Proceedings

• The legislative framework safeguards the play-out of all choices

– What do you have to do?– What should you do?– What could you do?

• Self audit your compliance with:– Modern Awards, the NES, General Protections, etc– Bargaining and dispute resolution processes– Pay-slips & record-keeping

• Review your HR decision making– Documentation

• For all recruitment, employment, promotion, performance management and termination

– Anti-discrimination protections• Pre-employment and during employment

• Plan very carefully– What sort of workplace do you want?– How do you want to grow your business?– How do you want to retain and develop your employees?

What should I pay attention to? What should I pay attention to?

ThingsYou need to

know

ThingsYou need to

know

• Fair Work Infoline: 13 13 94

• www.fairwork.gov.au

• GPO Box 9887 in each capital city

• Natalie James, Chief Counsel of the Fair Work Ombudsman

– Location L10, 208 Bunda Street and Corner Akuna Street, Canberra

– Telephone 02 6121 7566– Mobile 0418 441 601 – Email natalie.james@fwo.gov.au

CONTACTING USCONTACTING US