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Enforcement outcomes

We use our statutory enforcement tools for cases of serious non-compliance and for matters considered to be in the public interest. This may include instances of:

  • blatant disregard of the law
  • the exploitation of vulnerable workers, or
  • systemic issues of non-compliance, where there is a need for specific deterrence.

Our Compliance and Enforcement Policy provides more detail of our approach.

In 2018–19, we used 877 enforcement tools. This figure includes:

  • infringement notices
  • compliance notices
  • court enforceable undertakings
  • litigations.

Additionally, we wrote to 644 employers, formally cautioning them to correct compliance issues we'd identified.

Infringement notices

Infringement notices are on-the-spot fines we issue to employers for breaching record-keeping and pay slip requirements. Before issuing a notice, we consider:

  • the employer's previous compliance history
  • how much their lack of record-keeping impacts our ability to find, calculate and recover entitlements.

In 2018–19, we issued 563 infringement notices for a total amount of $479,900.

Compliance notices

Compliance notices formally require a person to take specific action to fix alleged entitlement-based breaches of the Fair Work Act.

In 2018–19, we recovered more than $1 million in unpaid wages through 274 compliance notices. If a person doesn't comply with a compliance notice in accordance with the statutory requirements, we take court action to enforce it. This can result in orders for remedial action and penalties.

FWO notice

A FWO notice requires a person or a business to give information, produce documents or attend an interview to answer questions. The FWO notice is a new enforcement tool, which is a provision of the Fair Work Act’s Protecting Vulnerable Worker’s Amendment.

We can apply to the Administrative Appeals Tribunal for the issuing of a FWO notice, if we believe on reasonable grounds:

  • a person has evidence that would assist us in an investigation
  • we have exhausted all other avenues to obtain that evidence.

We use FWO notices when people we wish to speak to regarding an investigation decline.

We issued one FWO notice in 2018–19.

Enforceable undertakings

Enforceable undertakings (EU) are court-enforcement, legally binding arrangements, where employers:

  • admit liability
  • express contrition
  • agree to fix any breaches
  • commit to ongoing compliance.

FWO’s EUs often require the employer to, as a minimum:

  • pay outstanding wages and entitlements including any interest
  • ensure payroll managers are properly trained
  • commission independent payroll audits.

In 2018–19, we entered into 17 EUs, recovering over $1.7 million in back-payments. We also commenced one litigation against an employer for failing to comply with the terms of an EU.

Copies of FWO’s EUs are publicly available on our website.

Enforcement outcomes 2018–19

Enforcement outcome

2018-19

Infringement notices issued

563

Compliance notices issued

274

Enforceable undertakings executed

17

Litigations commenced

23

Litigation

We generally reserve litigation for more serious cases of non-compliance. For example, we litigate matters where obtaining court orders will stop people from engaging in unlawful behaviour and will send a powerful public message to others not to engage in similar conduct. We also litigate to clarify the law and help the community understand the various obligations and rights arising from workplace laws.

In 2018–19, we achieved $4,400,772 in million court-ordered penalties ($3,487,585 against companies and $913,187 against individuals).

We achieved a number of significant litigation outcomes in matters where there was a high level of public interest.

Record penalties in relation to failure to comply with Fair Work Commission orders

The FWO obtained record penalties of $105,000 against a Brisbane-based wireless technology and radio communication business and its director (who was penalised a further $20,600) for failing to comply with an unfair dismissal order. After making several requests for the company to pay the $20,769 in compensation and $8470 in costs ordered, we took legal action against the business for failing to comply with Fair Work Commission orders.

Young workers

A Sydney-based fashion industry start-up and its director was penalised a total of $329,133 for underpaying three employees more than $40,000. One of the employees was treated as an unpaid intern when they should have been considered a part-time employee.

The unpaid intern was a graphic designer, who had completed a university degree, worked two days per week for almost six months without pay before receiving one payment of just $1000.

The employees have now been back-paid in full.

In another significant case, an online news service covering regional Queensland and its director was penalised a total of $264,924 for underpaying young journalists and production staff.

The court also ordered the company and its director to back-pay 23 staff a total of $305,780 in underpayments.

The workers were underpaid more than $30,000 each, with the largest underpayment of wages and entitlements being $48,217.

Migrant workers

We achieved significant penalties against a company and its operators running a 7-Eleven franchise and Japanese restaurant in Melbourne. The company, its director and its manager were penalised $335,664 for underpaying Chinese workers.

The 7-Eleven outlet was found to have required three international students to repay part of their wages in an unlawful cashback scheme. The company also underpaid a migrant worker at its restaurant significantly below the minimum hourly rate, with underpayments amounting to nearly $10,000.

We also litigated against the operator of an Adelaide nail salon for exploiting two young, migrant workers and creating false records in an attempt to cover up the exploitation. The nail salon and its director were ordered to pay a total of $130,000 in penalties for underpaying the two employees more than $50,000 over an 18-month period.

Fast food, restaurants and cafes

We secured $383,616 in combined penalties against the operators of three sushi outlets in regional NSW for underpaying their mostly vulnerable employees over $70,000.

The pay rates at the outlets did not comply with the Fast Food Industry Award, leading to underpayment of weekday rates, casual loadings and penalty rates. The case involved 31 employees including significant numbers of young workers and visa holders.

In another significant litigation in this industry, a café and its director was penalised $257,000 for underpaying 54 workers a combined total of $73,347. We first put the company and its director on notice about paying minimum entitlements including penalty rates. The affected employees included 25 visa holders, who were mainly on student and 417 working holiday visas.

Gender equity in briefings

In 2018–19, we remained committed to the Law Council of Australia’s Equitable Briefing Policy, which aims to improve gender equality in the number of briefs issued to barristers across the country. In 2018–19, the FWO briefed female counsel 31 times (50%) and male counsel 31 times (50%).

FWO’s Special Counsel, Janine Dennis, was recognised by Doyle’s Guide as one of 2019’s leading ‘In-House Employment and WHS Lawyers’. Doyle’s Guide provides a list of the leading firms and best lawyers across Australia, and their reviews are objectively compiled through peer-based surveys and interviews with clients, peers and relevant industry bodies.