Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

asked the Minister representing the Minister for Employment and Workplace Relations, upon notice, on 20 November 2012:

In regard to the Fair Work Ombudsman (FWO): (1) Why have unions as employers not been selected as an industry subject to enforcement campaigns by the FWO. (2) Why would unions as employers, including union peak bodies, not welcome their inclusion as a subject of enforcement campaigns by the FWO. (3) Did an FWO officer telephone Kat Savvas on 27 July 2012 to communicate that she has no cause to pursue her contractual entitlements. (4) Why has the FWO decided that it is not in the public interest to pursue a penalty against the Australian Nursing Federation Northern Territory Branch (ANFNT) for consecutive failures to lodge agreements, given that FWO has pursued a penalty for similar failures by non-union employers. (5) Why has the FWO not accepted an undertaking by ANFNT in lieu of an FWO pursuit of a penalty, given that FWO has previously accepted such an undertaking in lieu from a non-union employer. (6) Has the FWO pursued any penalties against, or accepted an undertaking from, any union or union peak body in relation to contravention or non-lodgement of agreements between unions or peak bodies and their employees.

Penny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | Link to this | Hansard source

The Minister for Employment and Workplace Relations has provided the following answer to the honourable senator's question:

(1) The Fair Work Ombudsman's national and state targeted campaigns typically involve the monitoring of compliance by duty holders with fair work instruments such as Modern Awards. The campaigns are both an education and a compliance activity. While there is no reason why registered organisations as employers could not be subject to a targeted campaign, there is little evidence in our complaints database to warrant such a compliance activity at present.

(2) The FWO is unable to respond to this question.

(3) Ms Savvas was contacted on 27 July 2012 and advised that the FWO cannot enforce entitlements under an agreement that did not commence operation. Ms Savvas was further advised that she may wish to consider seeking to enforce the unlodged agreements as common law contracts, noting that the FWO has no capacity under the Fair Work Act 2009 to enforce common law contractual rights.

(4) On 16 December 2011, the FWO notified Ms Savvas about its preliminary findings and advised her that before making a decision to commence legal proceedings, the FWO needed to be satisfied that there was sufficient evidence to prosecute the case and that it must be evident from the facts of the case, and all the surrounding circumstances, that commencing proceedings is in the public interest. Ms Savvas was provided with the opportunity to respond and make submissions but failed to do so. Accordingly, the FWO was unable to establish any evidence of Ms Savvas being financial disadvantaged or having been denied a benefit by the ANF – NT for its failure to lodge the 2007 Agreement. As a result of Ms Savvas' refusal to engage with the investigation in a formal interview process and the resulting lack of evidence, the FWO determined that commencing proceedings and pursuing this matter further was not in the public interest, taking into account all surrounding circumstances.

(5) The FWO enters into Enforceable Undertakings with duty-holders in accordance with the FWO's Guidance Note on the 'FWO Enforceable Undertakings Ploicy (Guidance Note 4) published on the FWO's website ar www.fairwork.gov.au/​fwoguidancenotes/​GN-4-FWO-Enforceable-Undertakings-Policy.pdf. An Enforceable Undertaking was not considered by the FWO in this matter as the investigation failed to disclose any requirement to compensate 'persons who have suffered loss or damage as a result of the contravention' or a situation wherein an Enforceable Undertaking 'would have ensured continuing compliance that was not available via an order from a court' (see paragraph 5.4 of GN 4).

(6) No.