'Too Soft or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work Ombudsman' by Tess, Hardy and John Howe in (2013) 41(1)
Federal Law Review reports on
the use of enforceable undertakings by the Australian employment standards enforcement agency, the Office of the Fair Work Ombudsman (FWO), and its predecessor, the Workplace Ombudsman. Enforceable undertakings are used by the FWO as an alternative enforcement tool to court litigation in relation to breaches of the national legislation regulating wages, working hours and other minimum employment conditions, the Fair Work Act 2009 (Cth). Proponents of enforceable undertakings argue that they deliver value to regulatory agencies as a responsive alternative to traditional, punitive enforcement action. On the other hand, critics have raised concerns about the accountability and effectiveness of this enforcement tool.
The authors provide a critical analysis of the FWO’s use of enforceable undertakings, including consideration of decision-making process, content, and monitoring and enforcement of undertakings. The analysis is based on a review of the content of all the enforceable undertakings, as well as qualitative interviews with approximately 60 inspectors, managers and lawyers of the FWO, and a number of specialist workplace relations lawyers. The article reveals that the FWO has made limited but promising use of enforceable undertakings since receiving statutory authorisation to accept them. Through deployment of enforceable undertakings, the FWO has demonstrated that it has a mix of regulatory approaches available to it that is consistent with the key principles of responsive regulation. Nevertheless, the article identifies some concerns about the accountability of enforceable undertakings that the FWO is working to address.
