By David Bates

Australia’s Fair Work Ombudsman (FWO), Natalie James, is known for her rather theatrical press releases in which she regularly admonishes Australia’s employers for failing to comply with the world’s most hopelessly complex employment laws.

In one particularly notable press release earlier this year, Ms James wrote:

“Be warned…we (the FWO) have a growing arsenal of options to help us make workplaces fair and you don’t want to get caught in the crossfire.”

As they’d say in the old Spaghetti Westerns, “them there are fightin’ words”!

As the FWO’s own website reveals, one weapon of choice in their ‘growing arsenal’ is the use of ‘Enforceable Undertakings’. These legally-binding agreements are presented to employers being investigated by the FWO as a way (sometimes the only way) to avoid further time-consuming and expensive prosecution and/or penalties.

For example, let’s say you’re found to have accidentally underpaid employees because you couldn’t make heads or tails of whichever one of the 122 indecipherable Modern Awards happens to apply to your employees. The FWO - after requiring you to backpay your workers – may then present you with an Enforceable Undertaking which you can accept in exchange for not being dragged along to court.

These Enforceable Undertakings invariably contain a wide-range of eye-watering obligations which even the largest and most sophisticated employers would have difficulty digesting. Here’s a sample of the terms the FWO often demands small business employers accept:

  • Annual audits by qualified accountants or employment lawyers, including the production of written reports detailing each applicable industrial instrument and any breaches which have been uncovered
  • The publishing of public notices confirming the employer’s breach of the law in major newspapers or online, presumably to ‘name and shame’ the employer and add spice to the FWO’s seemingly inevitable press release, and;
  • Compulsory training on Australia’s employment laws

You might think the last one is reasonable, particularly given the FWO’s official remit includes “educating people working in Australia about fair work practices, rights and obligations”. 

It might therefore surprise you to learn that while the FWO can force you to attend compulsory training on employment law, they’re unwilling to provide it themselves. Instead, employers – including small businesses – are expected to pay upwards of $1000 to private training providers.

There’s a word for the FWO’s consistent, relentless and unreasonable treatment of even small - but well-meaning and hopelessly overwhelmed Australian employers - appalling.