There are a number of stages to an investigation. However, depending on what a Fair Work Inspector finds during the first stages of an investigation, then the latter stages may not need to happen. This is at the discretion of the Fair Work Ombudsman and the Fair Work Inspector.
Stage 1: Assisted voluntary resolution (AVR)
We assign a Fair Work Inspector to the workplace complaint. The Fair Work Inspector will determine whether the matter is suitable for Assisted Voluntary Resolution (AVR).
If the matter is deemed suitable for AVR, the Fair Work Inspector talks to the person who made the workplace complaint and the party the complaint is about.
At this stage, the Fair Work Inspector won't have made a decision on the facts of the matter. They may form a preliminary view as to whether the complaint has merit.
The Fair Work Inspector will help both parties try to resolve the complaint and agree on how to fix it. This is called 'assisted voluntary resolution' (AVR).
If the matter can be resolved, this may mean the Fair Work Inspector doesn't have to take the next, more formal investigation steps.
However, the AVR process operates to a strict timetable of 30 days from lodgement of the complaint. Any issues that remain unresolved after the 30 days may be referred to a full investigation.
Matters suitable for AVR are usually complaints about wages and conditions (where there are no complicating factors).
Some complaints may proceed directly to a full investigation. This is at the discretion of the FWO. These complaints may have complicating factors, such as:
- the complainant is considered vulnerable or has requested confidentiality
- the matter is considered potentially complex or serious (for example, discrimination, freedom of association or industrial action).
Stage 2: Full investigation & compliance
If the complaint isn't or can't be resolved through AVR, the Fair Work Inspector continues the investigation to decide if there's been a contravention of Commonwealth workplace laws.
During this stage, the Fair Work Inspector seeks evidence to assist in making this determination.
As part of this process, the Fair Work Inspector contacts the employer (or the party the complaint is about) to ask for more information, relevant records and documents. If we don't get this information in the time allowed, the Fair Work Inspector may visit the workplace to get it.
Once the Fair Work Inspector has all the information and documents they need, they’ll review your workplace complaint and interview any relevant 3rd parties if necessary.
Depending on the type of complaint, the Fair Work Inspector might offer the parties formal mediation as a way to find a solution.
The mediation process involves a Fair Work Mediator who helps the parties agree to an outcome. This is made formal in a 'deed of final agreement'.
Where mediation doesn't result in an agreed outcome, the full investigation continues.
If the investigation shows a party has contravened the laws, the Fair Work Inspector may give them a contravention letter or a compliance notice. These tell the party how to fix the contravention (if it can be fixed).
If the party fixes the contravention at this stage, it's seen as voluntary compliance and the investigation is usually complete. However, if the contravention is serious, we may need to go to the next stage - 'enforcement'.
Stage 3: Enforcement
This stage happens when the party fails to fix the contravention, or the matter is serious.
At the enforcement stage, there are a number of possible outcomes or enforcement actions. A Fair Work Inspector will determine the best course of action dependent upon the specific circumstances.
The range of possible investigation outcomes and enforcement options include:
- resolution through formal alternative dispute resolution (such as mediation);
- a referral to small claims procedures;
- issuing a letter of caution
- entering into an enforceable undertaking
- the issuing of a compliance notice
- seeking an injunction
- the issuing of a penalty infringement notice
- commencing legal proceedings in Court.
If the Fair Work Ombudsman takes the matter to court, in addition to seeking any underpayment owing, the Fair Work Ombudsman will usually seek penalties to be paid by the defendant (the party who the complaint is about).
Guided by our 'Litigation Policy', we consider whether the matter should go to court. The policy includes other ways, apart from litigation, to fix the matter, for example, entering into an enforceable undertaking.
When deciding whether to litigate, we consider various issues, such as whether legal action is in the public interest.