Most FWO Prosecutions Targeting Accessories

Release date: 14/11/2016

Workplace Express, 2 November 2016
The Fair Work Ombudsman pursued accessories to alleged Fair Work Act breaches in nine out of every ten cases it lodged in court last financial year, while three-quarters involved visa-holders, according to its annual report.

"Nearly every matter we field in court – 92% - roped in an accessory (a party other than the employer who played a role in the exploitation of workers), Ombudsman Natalie James said her foreword to the report.
"In 2015-16 this included accountants and human resources managers", she said.
James noted that this strategy enabled the FWO to seek penalties against individuals involved in unlawful conduct, "irrespective of whether the corporate employer is still operating, or has money in the bank".
She continued that since the landmark Step Ahead ruling (see Related Article), "we can now also recoup back-payments from accessories, making them directly accountable for underpayments in which they were involved".

"Startling" rise in visa worker court cases
James said that a "startling" 76% of the FWO's 2015-16 court cases involved visa holders, up from 46% the previous year.
She said such workers are over-represented in FWO court actions because they "feature in the worst examples of worker exploitation that we see".
Visa holders constitute about 7% of the workforce, but account for 13% (up from 11%) of dispute forms lodged.
Recoveries for visa holders increased by 41%, with 687 workers (up from 488) winning more than $3 million, up from $1.6 million in 2014-15 and $1.1 million in 2013-14.
The FWO has restructured its operations to reflect the growing importance of workers from overseas, creating a migrant worker strategy and engagement branch, headed by Tom O'Shea, who has served in a variety of roles at the Ombudsman's office for eight years.
The new branch's engagement began with the Chinese community and in the current financial year it will work with more than 50 local government bodies containing large Chinese communities in Sydney and Melbourne.
It will then begin a similar campaign in the Korean community.

Shift to digital services
The FWO's investment in digital services appears to be paying off, with data showing a shift from phone to internet-based enquiries.
The FWO handled 394,000 phone calls (it also handled 20,00 voicemails) to its infoline and small business helpline in 2015-16, down from 469,000 in 2014-15 (see the report's graphical overview).
Visits to its website increased by almost two million to 15.3 million (up 14%) with mobiles accounting for 40% of visits, and individual users increased vrom 7.9 million to 9 million.
The FWO's pay and conditions tool (PACT) received more than four million visits, up from 2.2 million, while users performed more than five million calculations with the tool, up from 1.7 million.
Registrations doubled to 82,000 for the FWO's "My Account" service (up from almost 40,000 last year), while it responded to 47,000 enquiries, up from 22,300.
My Account enables users to save information, such as rates of pay and searches, then submit enquiries.
The report cites an example in which My Account cut what would have been a 20-minute phone call to six minutes, with the FWO's advisor saving wages information into the account of registered user who ran a small business.
It says the user was able to review the tailored information and submit further questions online.
The FWO's dedicated telephone/email enquiry service for IR practitioners, Practitioner Assist, handled 1400 enquiries, mostly about modern awards.
The FWO introduced an online booking system for the service during the financial year to enable practitioners to schedule a time to discuss their questions.

"Early intervention" up almost 40%
The FWO says it is making increasing use of its "early intervention" program, with 10,250 such interventions conducted in 2015-16, up 39% on 2014-15.
The FWO said when it released last year's annual report that early intervention helps employers and employees "to resolve disputes quickly and cooperatively, without the need for formal allegations or investigations".
It said it undertook early interventions when users made an initial call to the infoline or made a my account inquiry and before the lodgement of a dispute form.
The latest annual report says the FWO has recovered $8.1 million since it began the service in March 2014.
The FWO says its mediators, who handle cases that haven't been resolved through early intervention, finalised 4500 disputes in 2015-16 and helped to secure more than $7 million in backpayments.
The Ombudsman began 50 court cases in 2015-16, the same number as the previous year.
Two-thirds involved wages and conditions, while adverse action cases dropped from two to zero, as did industrial action cases, prosecutions for failing to comply with FWC orders dropped from six to two and sham contracting cases fell from six to three.
2015-16 Fair Work Ombudsman Annual Report, FWO, September 2016

Meanwhile, in a speech last week, James warned lawyers against becoming the first legal advisor to be found accessorially liable for breaching workplace laws.
She told a Law Institute of Victoria conference in Melbourne that lawyers should be careful not to "facilitate or involve yourself" in contraventions of the Fair Work Act, or, if the matter ends up in court "you may become liable for the sins of your clients".
James highlighted the judgment in Jooine in which Federal Circuit Court Judge Michael Lloyd-Jones discerned that a sham contract appeared to have been drafted by a person familiar with workplace law (see Related Article).
The FWO didn't have specific evidence to support such a claim, but she said the court "saw fit to send a strong message to those advisors who would construct exploitative arrangements for their clients".
The judge said the deliberate attempt to circumvent the Fair Work Act's protections should attract a strong and specific deterrent.
"The deterrent should also extend to the advisors who have facilitated the orchestration of these scams, to prevent the further proliferation of such advice and facilitation", Judge Lloyd-Jones said.
James said this "is exactly the sort of situation where a lawyer is exposed to being found to be an accessory".
She suggested lawyers think about how to respond when a client walks through the door and "asks you to dress their duck in the feathers of a chicken".
A modern workplace relations advisor with a "real world and holistic" view of their role "would understand the broader context and how to work with my agency; they give robust advice and they can spot a duck from a mile away", she said.
The changing landscape of the Australian workplace: The modern advisor, keynote presentation to the Law Institute of Victoria workplace relations conference 2016 by Fair Work Ombudsman Natalie James, October 28, 2016

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