Fair Work Ombudsman Investigations
The Fair Work Ombudsman is empowered to investigate compliance with workplace laws. These investigations can be triggered in various ways, including an employee reporting a workplace issue to the Ombudsman. In the event of a breach, the Ombudsman has the authority to initiate a prosecution.
The Importance of Legal Assistance
During an Ombudsman investigation, it's crucial to seek professional legal assistance from an employment law firm, such as MKI Legal. Doing so can help to prevent matters from escalating. An expert employment lawyer can help you comprehend the risks and determine whether there's been a breach of the Fair Work Act.
Protecting Employees’ Rights
Businesses need to ensure they don't retaliate against employees who have lodged a complaint to the Ombudsman. Making a complaint to the Fair Work Ombudsman is a protected workplace right, under the general protections provisions of the Fair Work Act. Treating the employee negatively because they made a complaint, could result in the business being obligated to compensate the employee and pay civil penalties under the Fair Work Act. It could make a bad situation worse.
The Value of Legal Advice
Legal advice is invaluable in determining the accuracy of an employee's allegations. Employment lawyers can resolve complex issues and understand likely outcomes. This knowledge empowers businesses during interactions with the Fair Work Ombudsman. At MKI Legal, we can help your business navigate these potential outcomes and represent you in negotiations with the Ombudsman, thus giving your business the best chance of
- Avoiding a prosecution by the Ombudsman
- Securing a lower penalty
- having the Ombudsman close the complaint and not take any action
The Benefits of Proactive Compliance
Identifying and resolving compliance breaches early can lead to a more lenient approach from the Ombudsman.
Knowing exactly which breaches have occurred before speaking to the Ombudsman allows the business to take the initiative. In other words, the business can spot the breaches and fix them before the Ombudsman takes any significant steps.
You’re more likely to get a better outcome if you’ve obtained legal advice to understand the breaches and taken proactive steps to fix them.
Understanding the Roles within the Ombudsman
Getting legal advice helps you understand who exactly you’re dealing with within the Ombudsman, and what stage the investigation is at. There is a big difference in dealing with an Inspector compared to, for example, an Assessment Officer. Not everyone working for the Ombudsman is an Inspector. Inspectors are involved in more serious cases, and they have more extensive powers such as the power to interview people, inspect records, and visit premises. There are significant penalties for failing to comply with the directions on an Inspector or someone acting on their behalf. Assessment officers on the other hand collect evidence from the business and the employee to understand the different viewpoints of each party. Subsequent decisions, such as whether to conduct an investigation or launch a prosecution, are made by different individuals within the Fair Work Ombudsman.
The Risks of Handling the Ombudsman without Legal Advice
Handling the Ombudsman without legal advice can lead to the disclosure of more information than necessary. While honesty and straightforwardness are crucial when dealing with the Ombudsman, it's generally advisable to only provide as much information as they ask for. If you don’t get legal advice, you may accidentally volunteer more information than was asked, and that could lead to more severe action being taken against the business. This tip is not about concealing information. It’s about answering the questions directly and not volunteering more than was sought. If you don’t have expert legal guidance, you’re more likely to answer questions in the wrong way or reveal breaches of the Fair Work Act that the Ombudsman wasn’t even investigating.
Possible Consequences of Ombudsman Investigations
The best outcome is that the case is closed, and no action is taken by the Ombudsman. The Ombudsman has several means of action against a business that it finds in breach of workplace laws. The first includes issuing a compliance notice, which forces the business to do certain things such as rectification of breaches, staff training and make repayments. This is generally the least severe form of action that can be taken against a business. The Ombudsman can also enter into an enforceable undertaking, which is a contract that requires the business to for example rectify breaches, conduct staff training, perform ongoing audits, make repayments to affected employees, and make a contrition payment as a penalty alternative. These agreements are generally made public. In more severe cases, the Ombudsman can commence legal proceedings against the business, potentially resulting in significant penalties.
How MKI Legal Can Help
At MKI legal, we can help you navigate these potential consequences and represent you in negotiations with the Ombudsman, ensuring your business has the best chance of receiving a lower penalty or having the case closed.