Avoid IR penalties - Join an employer association
April 2009
The Workplace Ombudsman's chief counsel has revealed his three-year-old organisation had never prosecuted a member of an employer organisation, saying their sound advice to members was the best "insurance policy" against intervention by IR enforcement agencies.
In a speech to the NSW IR Society earlier this month, Leigh Johns said the Workplace Ombudsman (WO) had never launched action against a member of an employer association.
"And that is because they provide good advice."
Johns said if he was an employer association, "I would be out there selling the fact they are an insurance policy against an intervention by the Workplace Ombudsman."
Johns added that in the previous three years, the WO hadn't launched a single civil penalty case against anyone other than an employer.
However, employers were not the only ones who broke the law, and if the WO was to properly fulfil its role, "that must change" and the agency would have to prosecute a wider range of players.
Johns said that in the past three years, the WO had "hit its straps" and become a genuine national workplace relations regulator.
The previous regulator "incarnations" had never been effective, for a variety of reasons, including money, resourcing and public policy, he said.
He harked back to his time in private legal practice to illustrate his view that the new kid on the block was vastly different to the "toothless tiger" that was the pre-WorkChoices OWS.
"In the 14 years that I was involved in private practice, if one of my clients got a letter from the OWS I very confidently said to them: 'Throw it in the bin, and if they ever call you back give me a ring."
"Never got the second call," he said.
But times had changed. "You would be a very brave lawyer to give that advice to your client these days I think," said Johns.
He said the 230 per cent increase in penalties under WorkChoices had been important because breaches no longer involved a mere "slap on the wrist", particularly when allied with a new model of "insistent compliance" with IR laws that had led to recovery of $71 million in entitlements, commencement of 159 cases (110 of them finalised) and securing $3 million in penalties. "It is no longer simply about persuasive compliance," he said.
He said that in ramping up enforcement activities, the inspectorate was operating more consistently with the ILO's labour inspection convention, particularly article 17 (which provides for labour inspectors to initiate legal action) and article 18 (adequate penalties).
Johns also noted that the WO instituted legal action in accordance with its litigation policy, which it issued in late 2007 and updated in late 2008.
Source: Workplace Express, 1 April
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