More FWO staff to tackle compliance: How can you best utilise FWO?

The budget will result in FWO hiring at least 30 more employees in the 2021-22 financial year to beef-up its compliance handling processes. FWO recently reported that the number of large corporations under investigation for underpayment had risen to 70%.

The concern of defending FWO prosecution now feels more imminent with the significant number of employers that have revealed the ‘inadvertent’ underpayment of staff after not reviewing the adequacy of their annualised salary arrangements.

But the FWO is not just a prosecution body. The sometimes-overlooked role of the FWO includes to promote compliance with workplace laws ‘...including by providing education, assistance and advice’.

The FWO has a website and a helpline for advice and assistance. This can be useful as it enables employers to find the answer that the FWO is likely to support. And if your practices are consistent with the FWO advice, and there are genuine attempts at resolution then the chance of prosecution is low.

But . . . you will notice the disclaimer that comes with the advice. FWO advice is not legal advice and the FWO may change its opinion, or it could be wrong (i.e. a Court could reach a different conclusion).

What then if you have already implemented the FWO advice? The FWO may still say it expects the employer to comply with the ‘new’ opinion and it will prosecute if the contravention is not rectified. In those circumstances the FWO is unlikely to seek (and a Court is unlikely to order) civil penalties when the employer has in ‘good faith’ acted on the advice of the FWO.

And this emphasises another point. The FWO is not the decision-maker in relation to workplace laws. While the FWO may have an opinion (and it is an opinion worth factoring into your risk management) it is ultimately for a Court to make the decision. However, the problem is there are many Award ambiguities (eg coverage, classifications and payment obligations) with no case law resolve them.

Our general view is that, depending on your organisation’s particular risk profile, working through your legal team and getting ‘anonymous’ FWO ‘advice’ on contentious points can be worthwhile. The value of course is more about giving you an ‘additional sleep at night factor’ because your approach or proposed position taken is consistent with the FWO ‘trend’ or ‘guide’.However, a further word of caution -FWO’s opinion can be inconsistent depending on who answers the phone and how the question is asked and in any event their opinion can’t be relied upon to defend a claim. So, there is no substitute for obtaining your own advice and, if necessary, arriving at your own decision based on your risk profile when you are forced to operate in the ‘shades of grey’.