Coverage of the federal system
Enforcement
Institutions
The federal system of workplace regulation operating under the Fair Work Act 2009 (Cth) (FW Act) applies to most — but not all — employers and employees across Australia. Broadly speaking, the Fair Work system encompasses the following employees:
- •all employees in the Australian Capital Territory;
- •all employees in the Northern Territory except members of the police force;
- •all employees in Victoria except law enforcement officers and certain executives in the public sector;
- •all employees in New South Wales except public sector and local government employees;
- •all employees in South Australia except public sector and local government employees;
- •all employees in Queensland except public sector and local government employees;
- •all employees in Tasmania except public sector employees;
- •employees in Western Australia who work for a constitutional corporation;
- •employees of the Commonwealth or a Commonwealth authority; and
- •waterside employees, maritime employees or flight crew officers in interstate or overseas trade or commerce.
In all states but Victoria, separate industrial relations systems continue to operate, regulating the employment conditions of employees who are not covered by the Fair Work system.
See Fair work system.
Enforcement of the Fair Work Act 2009 (Cth) (FW Act), and instruments made under it such as modern awards and enterprise agreements, is primarily the responsibility of the Office of the Fair Work Ombudsman (FWO). The FWO acts mainly on the basis of complaints made by employees.
Importantly, however, employees, employers and organisations (eg unions and employer organisations) also have the capacity to enforce federal workplace relations laws.
Part 4-1 of the FW Act deals with the enforcement of what are known as “civil remedy provisions” of the legislation. Applications may be made to specified federal, state and territory courts for orders to address alleged contraventions of civil remedy provisions. These orders may include injunctions, orders for compensation or reinstatement, and the imposition of financial penalties.
Various other enforcement options are available to the FWO, in addition to bringing court proceedings against an alleged wrongdoer, including issuing compliance notices or infringement notices, or entering into enforceable undertakings.
See What measures can be taken to enforce the provisions of federal workplace relations laws?
Further enforcement considerationsDivision 4A of Part 4-1 of the Fair Work Act 2009 (Cth) (FW Act) makes franchisors and holding companies liable for certain contraventions of workplace laws by businesses in their network where they knew or could reasonably be expected to have known that the contraventions would occur, or that contraventions of the same or a similar character were likely to occur, and they failed to take steps to manage the risk.
These ‘extended liability’ provisions do not replace, but supplement the accessorial liability provisions in s 550 of the FW Act.
The Fair Work Commission (FWC) is the national industrial tribunal, established under Pt 5-1 of the Fair Work Act 2009 (Cth) (FW Act). The tribunal was formerly known as Fair Work Australia (FWA), and was renamed the FWC as of 1 January 2013.
The FWC is responsible for dealing with a wide range of matters under the FW Act, predominantly through the exercise of dispute resolution powers including mediation, conciliation and (in some instances) arbitration.
The tribunal commenced operation on 1 July 2009, replacing the Australian Industrial Relations Commission (AIRC).
See Fair Work Commission.
Fair Work OmbudsmanThe Office of the Fair Work Ombudsman (FWO) is established by Pt 5-2 Div 3 of the Fair Work Act 2009 (Cth) (FW Act), and is made up of:
- •the FWO;
- •staff of the Office of the FWO; and
- •Fair Work Inspectors.
The Office of the FWO is responsible for compliance with and enforcement of the FW Act and related federal laws (including modern awards, enterprise agreements and other instruments made under the FW Act). It also has a focus on providing education and advice to all relevant parties about the Fair Work system.
The Office of the FWO has assumed increased importance in the federal workplace relations system in recent years, with a significant boost in resources aimed at ensuring high levels of compliance with workplace laws.
See Fair Work Ombudsman.
Fair Work Divisions of Federal Court and Federal Circuit CourtFair Work Divisions of the Federal Court of Australia and Federal Circuit Court of Australia (formerly the Federal Magistrates Court) have jurisdiction in matters relating to federal workplace relations law, as provided for in Pt 4-2 of the FW Act.
Certain state and territory courts also have jurisdiction in some matters under the FW Act and related laws.
See Fair Work Divisions of Federal Court and Federal Circuit Court.
Registered Organisations CommissionThe Registered Organisations Commission (ROC) was established under the Registered Organisations Amendment Act 2016 (Cth) (RO Amendment Act) and commenced operation on 1 May 2017.
It is an independent body with responsibility for monitoring and regulating the activities of registered organisations and their office holders. The RO Amendment Act confers broad investigation and information gathering powers on the Commission to ensure that registered oragnisations comply with the statutory requirements.
See Registered Organisations Commission.
Representation of parties before the FWCProceedings in the Fair Work Commission (FWC) are meant to be informal, and where possible, non-adversarial. The default position under the FW Act is that parties to a matter before the FWC must normally appear on their own behalf. The FWC’s permission is required for a lawyer or paid agent to represent a party at a conference or hearing, unless an exemption applies.
