New Initiatives in Enforcing Employment Standards

New Initiatives in Enforcing Employment Standards: Assessing the Effectiveness of Federal Government Compliance Strategies

Project Overview

Source of Funding
Australian Research Council (ARC) Linkage grant

Funds received
$180,000

Duration
2009-2012

Partner Organisation
Fair Work Ombudsman

Project Summary
The well-being of more than nine million Australian employees is underpinned by statutory workplace entitlements. For the large majority of these employees, these are set by federal legislation. The statutory entitlements are meaningful only in so far as they are complied with, and improving the effectiveness of the federal enforcement agency, the Fair Work Ombudsman, is therefore of crucial public importance.

This project provides the first comprehensive scholarly evaluation of the Fair Work Ombudsman whose office responsible for the enforcement of working conditions relating to pay, reasonable working hours and leave, amongst other regulatory functions. The findings of this project identify multiple ways in which enforcement practices can be improved, not only for the Fair Work Ombudsman, but also comparable compliance agencies domestically and overseas.

On this website you will find more detail about the scope and aims of the project, the people involved, as well as links to useful resources. Your input is welcome. We would be happy for you to contact us with your comments about the project. We also encourage you to share any relevant resources on this subject on our useful links page.

Chief Investigators

The Chief Investigators for this project are:

• Professor John Howe
• Professor Sean Cooney

The Research Fellow for this project is Dr Tess Hardy.

About the Project

Aims of the Project

This project examines the compliance and enforcement functions of the federal government agency responsible for ensuring compliance with, and enforcement of, minimum employment conditions. More than nine million Australians have their entitlements to pay, leave and working hours underpinned by mandated employment standards set by either statutory minima or modern awards.

Under this regulatory regime, the Fair Work Ombudsman is the government agency that is primarily responsible for securing compliance with these rights and standards. While some form of federal government agency has existed in this space since the 1930s, the Fair Work Ombudsman is a radically transformed version of its predecessors. It is therefore of significant interest.

This project is assessing the Fair Work Ombudsman by:

• investigating its operation through documentary analysis, participant observation and qualitative interviewing;
• considering the agency in light of the regulatory theory, and specifically, studies of analogous organisations in Australia, the United States, France, China and Brazil, amongst others; and
• examining employer and business responses to the activities and interventions of the Fair Work Ombudsman.

This project has been prepared in close collaboration with the Fair Work Ombudsman.

Useful Links

Fair Work Ombudsman

www.fairwork.gov.au

The Fair Work Ombudsman is a statutory office created by the Fair Work Act 2009 (Cth), which operates independently of the Commonwealth Government.

The Fair Work Ombudsman's functions include promoting harmonious, productive and cooperative workplace relations and ensuring compliance with Commonwealth workplace laws. The services of the Fair Work Ombudsman are free to all workers and employers in Australia.

The Fair Work Ombudsman does not advocate or represent on behalf of any specific person or interest.

In exercising these functions, the Fair Work Ombudsman:

• offers people a single point of contact for them to get accurate and timely information about Australia's workplace relations system
• educates people working in Australia about fair work practices, rights and obligations
• investigates complaints or suspected contraventions of workplace laws, awards and agreements
• litigates to enforce workplace laws and deter people from doing wrong in the community
• builds strong and effective relationships with industry, unions and other stakeholders.

ILO Labour Administrative and Inspection Programme

http://www.ilo.org/labadmin/lang--en/index.htm

The Labour Administration and Inspection Programme (LAB/ADMIN) aims at assisting constituents in promoting Decent Work through the strengthening of labour administration machinery, including labour inspection, and making them more effective. The 2008 ILO Declaration of Social Justice for a Fair Globalization has reaffirmed the need to "strengthen the ILO's capacity to assist its members' efforts to reach the ILO's objectives in the context of globalization… and of promoting social dialogue and tripartism as the most appropriate methods for (among other)… the building of effective labour inspection systems."

US Department of Labor

http://www.dol.gov/dol/topic/wages/

The United States Department of Labor enforces the Fair Labor Standards Act (FLSA), which sets basic minimum wage and overtime pay standards. These standards are enforced by the Department's Wage and Hour Division.

Labour Law Research Network

http://www.labourlawresearch.net/Home.aspx

The Labour Law Research Network was set up in 2011 by research institutes and centres from all over the world dedicated to the study of labour law. Its goal is to advance research in labour law, and specifically to facilitate the dissemination of research work and encourage open discussion of scholarship and ideas in this field.

The Network is open to all scholars interested in the study of labour law, whether affiliated with a research centre or not. All scholars associated with a University (whether full-time or not, and including doctoral candidates) and interested in labour law are welcome to join. The Network defines labour law broadly, including all aspects of law and policy pertaining to the regulation of work.

Publications

Major Research Reports

• John Howe and Tess Hardy, 'Business Responses to Fair Work Ombudsman Compliance Activities', January 2017. Report available online.
• John Howe, Tess Hardy and Sean Cooney, 'The Transformation of Enforcement of Minimum Employment Standards in Australia: A Review of the FWO's Activities from 2006-2012', July 2014.  Report available online.

Journal Articles

• Tess Hardy and John Howe, ‘Addressing Employer Non-Compliance in Complex Supply Chains: A Review of Innovation in Regulatory Enforcement’ (2015) 57 Journal of Industrial Relations 563-584
• Tess Hardy, John Howe and Sean Cooney, ‘Less Energetic but More Enlightened? Exploring the Fair Work Ombudsman’s Use of Litigation in Regulatory Enforcement’ (2013) 35 Sydney Law Review 565-597
• Tess Hardy and John Howe, ‘Too Soft or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work Ombudsman’ (2013) 41(1) Federal Law Review 1-33
• John Howe, Tess Hardy and Sean Cooney, 'Mandate, Discretion and Professionalisation at an Employment Standards Enforcement Agency: an Antipodean Experience' (2013) 35 Law & Policy 81
• Helen Anderson and John Howe, 'Making Sense of the Compensation Remedy under the Fair Work Act', forthcoming in (2012) 36 Melbourne University Law Review 335
• Tess Hardy and John Howe, 'Accountability and the Fair Work Ombudsman' (2011) 18(1) Australian Journal of Administrative Law 127.
• Tess Hardy, 'Enrolling Non-State Actors to Improve Compliance with Minimum Employment Standards' (2011) 23(3) Economic and Labour Relations Review 117.
• Tess Hardy and John Howe, 'Partners in Enforcement? The New Balance Between Government and Trade Union Enforcement of Employment Law Standards in Australia' (2009) 23(3) Australian Journal of Labour Law 306.

Reports and Submissions

• Centre for Employment and Labour Relations Law, Submission to the Fair Work Act Review, February 2012 (Anna Chapman, Tess Hardy and John Howe)
• Centre for Employment and Labour Relations Law, Submission to the ACTU Independent Inquiry into Insecure Work, January 2012 (Andrew Newman, Tess Hardy and John Howe)
• Centre for Employment and Labour Relations Law, Inquiry into Sham Arrangements and the Use of Labour Hire in the Building and Construction Industry: Submission in Response to the Discussion Paper prepared by the Office of the Australian Building and Construction Commissioner, March 2011 (John Howe and Tess Hardy).
• John Howe, Nicole Yazbek and Sean Cooney, 'ILO Comparative Study on Labour Inspection Sanctions and Remedies - Australia' (International Labour Organisation, Labour Adminstration and Inspection Programme, Geneva, March 2011).

Conference Papers

• Tess Hardy and John Howe, ‘The “Ripple Effect” in Labour Law Enforcement: Business Responses to FWO Compliance Activities’, Australian Labour Law Association National Conference, Melbourne, 4-5 November 2016.
• John Howe, ‘The Regulatory Project in Labour Law: The Contribution of Regulatory and ‘New Governance’ Theory to Labour Law Scholarship’, The Evolving Project of Labour Law Workshop, Melbourne Law School, 4-5 February 2016.
• Tess Hardy and John Howe, ‘Gatekeepers in Labour Law Enforcement’, Third Biennial Conference of the NZ Labour Law Society, Victoria University Law School, Wellington, 27 November 2015.
• Tess Hardy and John Howe, ‘Gatekeepers in Labour Law’, Australian Labour Law Association, National Conference, Sydney, 14-15 November 2014.
• Tess Hardy and John Howe, ‘Addressing Employer Non-Compliance in Complex Supply Chains: A Review of Regulatory Innovations by the Fair Work Ombudsman’, presented by Howe to the Journal of Industrial Relations Symposium Supply Chains, HRM Practices and Labour Standards, UTS Business School, 10 February 2014.
• Sean Cooney and John Howe, ‘Expanding the Effective Scope of Labour Regulation through Innovation in Labour Inspection:  Developments in Australia and China’, 3rd Conference of the Regulating for Decent Work Network, International Labour Office (ILO), Geneva, Switzerland, 3- 5 July 2013.
• Tess Hardy and John Howe, ‘Guarding the Gatekeepers? The Use of Accessorial Liability to Address Employer Non-Compliance in Australia’, Inaugural Labour Law Research Network Conference, Barcelona, 13-15 June 2013.
• Sean Cooney and John Howe, ‘Innovation in Labour Inspection: Australia and China Compared’, 8th Asian Regional Congress of the International Labour and Employment Relations Association (ILERA), Melbourne, Australia, 9 – 14 April 2013.
• John Howe and Tess Hardy, 'Rough Justice or Restorative Justice? The Use of Enforceable Undertakings and Accessorial Liability to Motivate Employment Standards Compliance by Corporations', Seventh Annual Labor and Employment Law Colloquium, Loyola University Law School and Northwestern University Law School, Chicago, 14-15 September 2012.
• John Howe and Tess Hardy, 'The Use of Enforceable Undertakings as a Strategic Labour Law Compliance Strategy', World Congress of the International Labour and Employment Relations Association, Philadelphia, USA, 3-5 July 2012.
• Tess Hardy, 'Coming Clean: The Drivers of Employer Non-Compliance in the Australian Cleaning Industry and the Search for New Regulatory Approaches', presented at the Sydney Law School Postgraduate Conference, Sydney, 27-28 October 2011.Tess Hardy, 'Speaking for Those Who Cannot? Employee Voice and Collaborative Compliance and Enforcement Campaigns in Australia', presented at Voices at Work Conference, Oxford University, United Kingdom, 29-30 July 2011.
• Sean Cooney, Tess Hardy and John Howe, 'Off the Radar? Detecting and Inspecting Non-Compliance with Minimum Working Conditions', 2^nd Conference on Regulating for Decent Work , International Labour Organisation, Geneva, Switzerland, 6-8 July 2011.
• Tess Hardy, 'Friend or Foe? Collaborative Compliance and Enforcement Strategies in Australia', presented at the Regulating for Decent Work Conference, International Labour Office, Geneva, 6-8 July 2011.
• John Howe, 'The Promotion of Collective Bargaining and Workplace Cooperation by Non-Legislative Mechanisms: Does it Work?', presented at the Collective Bargaining under Australia's Fair Work Act: Assessing the New Legislation in International Perspective Workshop, RMIT University, 23-24 November 2010.
• Tess Hardy, John Howe and Sean Cooney, 'The Fair Work Ombudsman's Role in Enforcing Minimum Employment Standards under the Fair Work Act: A Comparative Perspective', National Conference of the Australian Labour Law Association, Adelaide, 19-20 November 2010.
• John Howe, 'New Initiatives in Enforcement of Employment Standards: A Comparative Perspective', Fourth Annual Colloquium on Current Scholarship in (US) Labor and Employment Law, Seton Hall University School of Law, Newark, New Jersey, September 25-26 2009.

Other Presentations

• John Howe, 'The Use of Enforceable Undertakings and Accessorial Liability to Motivate Employment Standards Compliance by Corporations in Australia: Complementary or Parallel Enforcement Strategies?', invited presentation to the University of Toronto Centre for Industrial Relations and Human Resources, Canada, co-hosted by Osgoode Hall School of Law, York University, 18 September 2012.
• John Howe and Tess Hardy, 'Innovation in Employment Standards Enforcement: The Fair Work Ombudsman's Use of Enforceable Undertakings', Labour Law Seminar, Centre for Employment and Labour Relations Law, Melbourne Law School, 23 May 2012.
• Helen Anderson and John Howe, 'Recovering Compensation for Employment Entitlements in Cases of Accessorial Liability under the Fair Work Act', Labour Law Seminar, Centre for Employment and Labour Relations Law, Melbourne Law School, 13 March 2012.
• John Howe and Tess Hardy, 'The FWO's Radar: Detection of Non-Compliance with Minimum Working Conditions by the Australian Employment Standards Regulator', presented at the Newcastle Business School, University of Newcastle, February 2012.
• Sean Cooney, Tess Hardy and John Howe, Presentation of Work in Progress to Rethinking Regulatory Paradigms Workshop - Regulation, Justice, Inequality and Capitalism, Monash University Centre for Regulatory Studies, 8-9 December 2011.
• John Howe, 'In the Right Place at the Right Time: The Fair Work Ombudsman and the Global Revival in Employment Standards Enforcement', invited presentation to the Australian Labour and Employment Relations Association National Conference, Fremantle WA, 6-8 October 2011.
• John Howe, 'The Use of Litigation as an Enforcement Strategy', invited presentation to Joint ABCC/FWO Legal Conference, 1 March 2011.
• John Howe and Tess Hardy, 'The Enforcement of Minimum Employment Standards: Regional Issues', presented at the Expert Workshop – Employment Regulation and Work-Life Community: Taking a Place/Space Perspective, RMIT University, Melbourne, March 2011.
• Tess Hardy, 'Collaboration and Enforcement of Minimum Employment Standards: Fruitful or Fruitless?, presented at the Association of Industrial Relations Academics in Australia and New Zealand, Auckland, 2-4 February 2011.
• John Howe, 'Enforcement of Minimum Employment Standards and Occupational Health and Safety Regulation in Australia', invited presentation to International Labour Office Workshop on Labour Inspection Sanctions and Remedies, University Ca Foscari, Venice, 2-3 December 2010.
• John Howe and Tess Hardy, 'New Initiatives in Enforcement of Employment Standards: Assessing the Effectiveness of Federal Government Compliance Strategies', presentation to Empirical Research in Labour Law Workshop, Adelaide Law School, 22 November 2010.
• Peter Gahan and John Howe, Presentation to FWO Roundtable on Promoting Harmonious and Cooperative Workplaces, 17 November 2010, Melbourne Law School.
• John Howe, 'National Systems and Styles of Employment Standards Enforcement', Presentation to Melbourne Law School Legal Research Seminar, 16 August 2010.
• John Howe, '"Protected by Law": A Typology of Labour Law Enforcement', Presentation to Monash Department of Business Law and Taxation Research Workshop, 27 August 2010.
• Sean Cooney and John Howe, 'Labour Inspection and Law Enforcement: the Role of State and Private Actors', seminar delivered to the LAB/ADMIN section of the International Labour Organisation, Geneva, Switzerland, 7 July 2009.

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