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By David Bates

The Fair Work Ombudsman (FWO), Natalie James, is fond of telling Australia’s hard-working small business employers that she’s very good at her job. In her almost daily press releases and speeches, Ms James extolls the virtues of her agency using colourful – and generally completely inappropriate – language.

Last year, for example, she wrote: ‘The tide is turning. The escape routes are being shut down.’ She then went on: ‘We have a growing arsenal of options…and you don’t want to get caught in the crossfire…’.

What Ms James fails to mention in her somewhat bizarre press releases is that her agency is, quite simply, unfit for purpose. The evidence for this conclusion can be found in three simple facts:

Fact #1:

The vast majority of employers in this country are not complying with either the Fair Work Act 2009 or with applicable Modern Awards. We know this because the endless press releases churned out by the FWO tell us so.

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Given that:

– only one Commonwealth agency (i.e. the FWO) is legally-responsible for educating employers about their obligations under the Fair Work laws; and

– the Fair Work laws have now been in place for more than seven years; and

– most employers are failing to comply with these

It is both fair and logical to conclude the FWO has comprehensively failed to fulfil its remit.

Fact #2:

The FWO appears to have now simply given up on educating employers about their legal responsibilities, and is instead focussing its time and resources on punishing those who provide advice to non-compliant businesses.

Accountants, bookkeepers and HR services all risk being caught in Ms James’ ‘crossfire’ because her agency now routinely relies on section 550 of the Fair Work Act 2009 (the so-called ‘accessorial liability’ provision) to punish business advisors.

Fact #3:

Even when systemic breaches of the Fair Work laws are identified, the FWO is incapable of doing anything useful about them. Take the truly-ridiculous ‘Pro-Active Compliance Deed’ put in place by the FWO with Dominos Pizza. Despite the majority of that chain’s franchisees being identified as non-compliant with the Fair Work laws, the Deed requires the FWO to redirect any complaints it receives directly from disgruntled employees back to the company itelf.

Domino FWO Proactive Compliance Deed

Put another way, the business that’s been identified as not complying with its legal obligations has been given permission to self-regulate. Seriously?

Is it really any wonder why the FWO is now widely ridiculed and given a very wide berth by employer associations and unions alike?