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Year in review

 Sandra Parker PSM, Fair Work Ombudsman.
Pictured: Sandra Parker PSM, Fair Work Ombudsman.

In the past year, we achieved our purpose of promoting harmonious, productive, cooperative and compliant workplace relations in Australia through intelligence-led education and compliance activities.

Our focus on priority sectors and issues helped us determine where our discretionary efforts were best directed. This enabled us to utilise our resources to deliver maximum benefit to the Australian community and resulted in $148.4 million in monies recovered for over 69,700 workers. This is a 20% increase on 2019–20 and nearly 5 times the recoveries achieved in 2017–18.

Guided by our 2020–21 priorities, we have:

  • conducted 4,201 investigations in response to requests for assistance involving a workplace dispute and a further 874 targeted compliance activities in high-risk sectors
  • achieved significant litigation outcomes, including penalties under the ‘serious contraventions’ provisions of the Protecting Vulnerable Workers laws1
  • established our Large Corporates Branch to support specialised investigations into corporate sector underpayments
  • worked with business, community organisations, unions and government agencies to better understand the drivers of non-compliance
  • launched tailored education resources and campaigns to educate Australian workplaces about rights and entitlements
  • remained responsive in our approach to meet the significant challenges created by the coronavirus pandemic.

Supporting workplaces through COVID-19

COVID-19 has significantly changed the industrial relations landscape. Supporting Australia’s businesses and workforce through the pandemic was our overarching priority in 2020–21.

We focused on supporting vulnerable workers, small businesses and industries hardest hit. This included ensuring the most up-to-date information and advice was available as the situation evolved. Our coronavirus hotline answered more than 46,000 calls and our coronavirus website received over 3.2 million pageviews.

We also continued to uphold the integrity of the Fair Work Act provisions of the JobKeeper scheme (which ended on 28 March 2021) through appropriate and proportionate compliance activities. For example, we resolved 1,128 JobKeeper matters and recovered $852,120 in unpaid JobKeeper entitlements for 308 workers.

High-risk sectors including fast food, restaurants and cafés, horticulture and franchise networks also remained a priority. Many of these sectors have been seriously impacted by the pandemic, and this was a consideration in our education, engagement, compliance and enforcement activities.

Large corporate underpayments

We also continued to focus on compliance of large corporate entities to ensure major employers are meeting their obligations and have appropriate governance and systems in place to identify, remedy and prevent large underpayments.

In the last 2 financial years a significant number of employers, including some of Australia’s largest companies, have come forward to self-disclose workplace law breaches. Many thousands of workers have been impacted through being underpaid over many years.

Underpayments by large corporate entities have become a significant issue of public concern. We engage with these entities to provide assurance to underpaid employees and the community that backpayments are made and that corrective action is implemented by the company to prevent further underpayments.

Where entities engage with us openly and transparently and fully cooperate with us to assess and rectify underpayments as quickly as possible, there are significant benefits for employees and the entity, including non-litigious outcomes.

In the past financial year, 17 of the 19 court-enforceable undertakings (EUs) we entered into were with large employers who self-reported non-compliance to us. These EUs, and our corresponding media releases, send a message that employers, especially large corporate entities, must place a much higher priority on investing in payroll and workplace relations systems and expertise to ensure they are paying workers what they are entitled to.

Enforcing workplace laws

Regulating Australian workplaces significantly impacted by the COVID-19 pandemic has required a degree of flexibility in our approach. We continue to enforce workplace laws in a proportionate manner, focusing on matters that:

  • involve vulnerable workers
  • are of significant public interest or scale
  • demonstrate blatant disregard for the law
  • can provide guidance on the interpretation of the law.

Our response to serious non-compliance remains firm and has resulted in increased use of our compliance and enforcement tools. In particular, the issuing of compliance notices (CNs) by Fair Work Inspectors continued to achieve significant results.

In 2020–21, we issued 2,025 CNs, recovering more than $16.5 million in unpaid wages. This compares with 220 CNs issued and $0.95 million recovered for workers in 2017–18.

We recognise underpayments do not always occur as a result of deliberate action, but the outcomes are nonetheless harmful to the employees they affect. CNs give businesses a chance to make things right without receiving an additional penalty. Failing this, we will take court action to get unpaid wages back into the pockets of underpaid staff.

In 2020–21, we initiated 76 litigations – 41% more litigations than in 2019–20.

 Fair Work Ombudsman Priorities and Approach 2020–21
Figure 1: Fair Work Ombudsman Priorities and Approach 2020–21

Education and assistance

In addition to compliance and enforcement, providing education and assistance to employers, employees and organisations is a core function of the FWO.

In the past financial year, our frontline staff answered more than 423,000 customer enquiries over our phone and digital channels (including social media) and returned over $10.6 million to underpaid workers through our assisted dispute resolution services. The community also lodged over 14,000 anonymous reports of suspected non-compliance and made over 5.8 million pay tool calculations.

Our website was visited a record 21.4 million times. We continued to educate the community about their workplace rights and obligations and develop new and tailored resources for our online channels, including:

  • a template to help employers and their employees make a piecework agreement simply and easily under the Horticulture Award
  • new and updated sham contracting resources to help our customers understand the differences between employees and independent contractors
  • a range of new education tools and resources to help small business understand their workplace rights and obligations
  • web content and the Casual Employment Information Statement, which detail changes to workplace entitlements and obligations for casual employees.

Outlook

COVID-19 continues to have an unprecedented impact on Australian workplaces. Supporting employers and employees through the pandemic remains our core focus for 2021–22.

In addition to pandemic recovery support, fast food, restaurants and cafés (FRAC), large corporate underpayments, horticulture, sham contracting and franchising remain priorities for us in 2021–22. These priority areas continue to rate highly in our risk analysis.

We will also focus on the new priority area of contract cleaning. Our operational intelligence, experience and data tell us that the sector:

  • has a high business entry rate, with many operators being small businesses
  • comprises a large proportion of vulnerable employees, including low-paid migrant workers
  • has a history and ongoing high risk of non-compliance – especially as demand for COVID-19-safe cleaning services is expected to drive quick recovery in the sector.

This year, as part of the FWO’s priority setting process, we also made an enduring commitment to prioritising services and support for small businesses and vulnerable workers. This shouldn’t come as a surprise, as these cohorts are in need of greater assistance from government and providing this assistance is already a core part of what we do.

Consistent with this, we launched the Employer Advisory Service on 1 July 2021. This free service provides eligible small businesses with tailored written advice about their employees’ pay and entitlements under the National Employment Standards and awards.

We will continue to work across government and with relevant stakeholders to further understand the impacts of COVID-19 on workplaces. We will also continue to educate employers and employees about their rights and obligations by refining and adding to our suite of resources. And we will continue to take a strong stance against deliberate and systemic non-compliance with workplace laws.

Footnotes

  1. FWO media release, Melbourne retailer penalised for deliberate breaches, 12 February 2021, https://www.fairwork.gov.au/about-us/news-and-media-releases/2021-media-releases/february2021/20210212-uncle-toys-penalty-media-release FWO media release, Perth franchisee penalised $230,040 for repeat offending, 13 November 2020, https://www.fairwork.gov.au/about-us/news-and-media-releases/2020-mediareleases/november-2020/20201113-tac-pham-penalty-media-release