The Workplace Authority (WA) (formerly the Office of the Employment Advocate) and the Workplace Ombudsman (WO) (formerly the Office of Workplace Services) commenced their new roles on 1 July 2007.
The WA is responsible for checking workplace agreements against the Fairness Test, introduced under the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth). The WA is charged with ensuring that relevant employees receive fair compensation in lieu of excluded or modified protected award conditions if they agree to modify or remove protected award conditions in a workplace agreement. If a workplace agreement does not pass the Fairness Test, it will need to be changed so that it is fair. An employer may need to make up any back-pay associated with the excluded or modified protected award conditions for workplace agreements that fail the fairness test.
The WO is responsible for investigating and prosecuting those who breach workplace laws. The WO also has a greater role in ensuring that employers are complying with their legal obligations by:
- investigating alleged breaches of workplace relations laws
- undertaking compliance audits, and
- prosecuting employers who break the law.
Coinciding with the commencement of the WA and WO is the operation of the new Workplace Relations Amendment Regulations 2007 (No 2). The Regulations prescribe the disclosure of information required in AWAs and increase the powers of investigators to investigate coercion in agreements made under the Independent Contractors Act 2006 (Cth).
Implication for employers
Employers should assess and ensure compliance with relevant workplace laws to avoid being prosecuted or penalised for breaches by the WA and WO. The WO is partially focussed on employers of vulnerable workers such as women, young people and workers from non-English speaking backgrounds. For example, the WO has recently announced a review of the fast food industry, which employs a high proportion of young casual employees.
When making workplace agreements, employers will need to guarantee that, where protected conditions of employment are excluded or modified, employees receive fair compensation in lieu. A new Fairness Test policy guide has been released to provide additional information on how the new test operates in practice.
