Enforceable undertakings : a new mechanism for minimum labour standards’ enforcement

Regulatory commentators have identified the need for more responsive regulation to allow enforcement agencies to respond to different types and degrees of non-compliance. One tool considered to support responsive enforcement is the Enforceable Undertaking (EU). EUs are used extensively by Australian regulators in decisions that forego litigation in exchange for offenders promising to (amongst other things) correct behaviour and comply in the future. This arguably allows regulatory agencies greater flexibility in how they obtain compliance with regulations. EUs became an additional enforcement tool for the Fair Work Ombudsman (FWO) under the Fair Work Act 2009. This paper is a preliminary exploration of the comparative use of EUs by the Australian Competition and Consumer Commission and the FWO to assess their effectiveness for the minimum labour standards' environment.

Gender-based undervaluation and the equal remuneration powers of Fair Work Australia

We investigate gender-based wage undervaluation in light of FairWork Australia’s major recent decision for social and community service workers. Using regression methods, we demonstrate that wages for employees in female-dominated occupations are significantly lower than for comparable employees in male-dominated and integrated occupations. This undervaluation is present for both male and female employees, and persists after controlling for industry of employment. We then estimate the undervaluation within industry and juxtapose the results with evidence on the industry distribution of award reliance, a proxy for Fair Work Australia’s equal remuneration powers. There is not a strong relationship within industries between the extent of gender-based undervaluation and award reliance. This suggests that ‘equal remuneration for work of equal or comparable value’ is unlikely to be achieved universally by Fair Work Australia without substantial spillovers between awards and non-award agreements.

Supporting working parents: findings from the AHRC’s national inquiry into the prevalence of pregnancy and return to work discrimination in the workplace

In July 2014 the Australian Human Rights Commission (AHRC) released the findings of its national review into pregnancy and return to work discrimination in the workplace1 which it conducted following a request from the Commonwealth Attorney-General’s Department.2 The review comes 15 years after the commission’s first inquiry into pregnancy discrimination in the workplace.3Federal law has prohibited pregnancy discrimination in the workplace since the Sex Discrimination Act 1984 (Cth) (SDA) came into force.4 It is now unlawful in every state and territory.5 Discrimination on the basis of breastfeeding and family or carer’s responsibilities is also prohibited.6 Since 2009 the Fair Work Act 2009 (Cth) (FW Act) has prohibited workplace discrimination based on pregnancy and family or carer’s responsibilities7 and the Act gives employees additional entitlements relating to their parental and caring responsibilities. Male and female employees who are the primary caregiver for a child are entitled to 12 months unpaid parental leave upon the birth or adoption of the child and can request an additional 12 months leave.8 Upon returning to work, they can request flexible working conditions9 and they are protected from adverse action, such as dismissal, for exercising these rights.10 Yet despite these legal protections, the findings of the national review show that employees continue to experience discrimination during pregnancy, when taking parental leave and upon re-entering the workforce. This note presents the main findings from the surveys and consultations that were held with employers and employees as part of the review and the review’s recommendations for addressing the prevalence of what it terms ‘pregnancy/return to work discrimination’.

Wielding the big stick – Lessons for enforcing anti-discrimination law from the Fair Work Ombudsman

Anti-discrimination law is enforced by a person who has experienced discrimination by lodging a complaint at a statutory equal opportunity agency. The agency is responsible for receiving and resolving discrimination complaints and educating the community; it does not play a role in enforcing the law. The agency relies on ‘carrots’ to encourage voluntary compliance, but it does not wield any ‘sticks’. This is not the case in other areas of law, such as industrial relations, where the Fair Work Ombudsman is charged with enforcing the law — including the prohibition of discrimination in the workplace — and possesses the necessary powers to do so. British academics Hepple, Coussey and Choudhury developed an enforcement pyramid for equal opportunity. This article shows that the model used by the Fair Work Ombudsman reflects what Hepple, Coussey and Choudhury propose, while anti-discrimination law enforcement would be represented as a flat, rectangular structure. The article considers the Fair Work Ombudsman’s discrimination enforcement work to date and identifies some lessons that anti-discrimination law enforcement can learn from its experience.