What we do
We understand that issues arising in the workplace can be complicated. Our first step, once we’ve acknowledged receipt of your Workplace complaint form, is for a Fair Work Inspector to contact you and discuss in further detail the circumstances surrounding your complaint.
The vast majority of complaints received by the Fair Work Ombudsman are easily resolved though our facilitated Assisted Voluntary Resolution (AVR) process.
Assisted Voluntary Resolution will assist you and your employer (or the party the complaint is about) to find a fair and mutually acceptable resolution. At this early stage, the Fair Work Inspector won't have made a decision on the facts of the matter. They will assist you to form a preliminary view as to whether your complaint has merit.The Fair Work Inspector will work with both you and your employer to form a proposed resolution to the complaint.
Assisted Voluntary Resolution is also an opportunity to help employers understand their obligations. However, there are some situations that will require Fair Work Inspectors to undertake a more detailed analysis of the issues and as a result FWO may decide to implement a range of compliance activities including formal investigation.
The Assisted Voluntary Resolution service operates to strict time frames which you can discuss with the Fair Work Inspector assigned to your case.
Note: Since 1 January 2010, the Fair Work Ombudsman has worked in partnership with its state government counterparts in NSW, QLD, SA and TAS to effectively manage the investigation into your complaint. This means that, in those states, if your complaint is about pay and conditions, it will be investigated by a Fair Work Inspector who works for either the Fair Work Ombudsman or a partnering state government agency.
Formal investigation - what happens?
The Fair Work Inspector examines the details of the case to determine whether there has 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 and employee 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 the allegations made in the workplace complaint and interview any relevant 3rd parties.
If the Fair Work Inspector finds evidence that Commonwealth workplace laws aren't followed, they'll take further steps towards resolving the matter.
Fair Work Inspectors are invested with discretion to make determinations about the process or outcome of an investigation.
A Fair Work Inspector will determine the best course of action dependent upon the specific circumstances.
There are a number of possible outcomes or enforcement actions:
- the employer rectifying the contraventions
- issuing a contravention letter: this identifies the problems and asks the party to fix them within 14 days. Where a contravention cannot be fixed (eg. you cannot ‘un-coerce’ someone), the contravention letter will contain information on what happens next
- alternative dispute resolution: (achieved through methods such as mediation)
- a referral to small claims: gives employees the chance to take their own action to recover any unpaid entitlements
- issuing a compliance notice: details the problems and what the party needs to do to fix them (e.g. the amount they need to pay the employee within 14 days). It also explains that the party can get a court to review the notice if they meet the grounds for review
- issuing a letter of caution: is a formal warning issued to an alleged wrongdoer in respect of a contravention where the Fair Work Inspector has determined that there is sufficient evidence for the Fair Work Ombudsman to start litigation but it is not in the public interest to do so
- issuing a penalty infringement notice: similar to an on-the-spot fine. It can be issued to a party who doesn’t comply with Commonwealth workplace laws covering record-keeping and pay slips
- seeking an injunction: granted by a court to prevent, stop or remedy the effects of a contravention
- entering into an enforceable undertaking: a written deed executed between the alleged wrongdoer and the Fair Work Ombudsman which contains an admission of the contraventions, agreement to perform specific actions to remedy the contraventions and a commitment to certain future compliance measures
- litigation: The Fair Work Ombudsman may begin legal action against your employer (or the party the complaint is about) under Commonwealth workplace laws. In addition to seeking any underpayment owing to you, the Fair Work Ombudsman will usually seek penalties to be paid by the defendant (the party who the complaint is about).
Our Fair Work Inspectors aim to resolve most workplace complaints within 90 days, but investigations may take longer depending on how complex the case is.
What if the problems still aren't fixed?
If your employer (or the party the complaint is about) doesn't fix the identified issues, we'll tell you what legal options may be available to you. At the same time, we may choose to begin legal action against your employer (or the party the complaint is about) under Commonwealth workplace laws.
If we decide to take legal action, you might have to give evidence in court. If this happens, the Fair Work Inspector will help you prepare.
Interpreting and translating services are available for court appearances if you need them.
Your employer (or the party the complaint is about) may face penalties of as much as $6,600 per contravention for an individual and $33,000 per contravention for a body corporate.
Taking your own action
At any stage, you can take your own legal action to recover outstanding wages and / or entitlements. You can do this yourself, with our help or the help of your union.
If you decide to take your own action, the Fair Work Inspector can give you a small claims kit. This includes a summary of their findings about your workplace complaint (if any) and details about the small claims process.
If you take your own action, you need to tell the Fair Work Inspector handling your complaint.