PP 017 Compliance and Enforcement Policy 21 May 2024 | p. 1
Charles Staindl e
Compliance and
Enforcement Policy
PP 017 Compliance and Enforcement Policy 21 May 2024 | p. 2
Contents
Introduction .......................................................................................................................................... 3
Assistance: Our primary tool ................................................................................................................ 4
Assessment: When non-compliance occurs ......................................................................................... 7
Operational activities .......................................................................................................................... 10
Enforcement outcomes ...................................................................................................................... 14
Civil penalty litigation ......................................................................................................................... 17
Disclosure of information to relevant bodies ..................................................................................... 20
Review of decisions ............................................................................................................................. 20
Limitations .......................................................................................................................................... 21
Contacting the ROSB ........................................................................................................................... 21
PP 017 Compliance and Enforcement Policy 21 May 2024 | p. 3
Introduction
About this policy
The General Manager of the Fair Work Commission (the Commission) is the independent statutory
regulator of federally registered organisations under the Fair Work (Registered Organisations) Act 2009
(RO Act).
1
The purpose of this Compliance and Enforcement Policy (Policy) is to provide simple and clear information
about how the General Manager, supported by specialist staff within the Registered Organisations Services
Branch (ROSB), undertakes compliance and enforcement activities.
The Policy sets out:
• the General Manager’s approach to compliance and enforcement
• the tools and outcomes used by the General Manager and specialist staff within the ROSB
• what the General Manager expects of registered organisations
• what registered organisations can expect from the General Manager and the ROSB.
This Policy is intended to provide general information about the General Manager’s approach to
compliance. It does not have the force of statute.
The General Manager’s functions
The functions of the General Manager
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include:
• promoting efficient management of organisations and high standards of accountability of
organisations and their office holders to their members
• promoting compliance with the financial reporting and accountability requirements of the RO Act
• providing education, assistance and advice to registered organisations and their members
• monitoring acts and practices to ensure they comply with the provisions of the RO Act and providing
for the democratic functioning and control of organisations
1
Where not otherwise specified, all references in this document to sections are to provisions of the Fair Work (Registered Organisations) Act
2009 and references to regulations are to provisions of the Fair Work (Registered Organisations) Regulations 2009.
2
section 329A of the RO Act
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• doing anything incidental to or conducive to the performance of any of the above functions.
The General Manager is also required to embed within organisations a culture of good governance and
voluntary compliance with the law.
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Our common interests
There are common interests shared by the registered organisations and the General Manager to:
• enhance the democratic functioning of registered organisations
• empower registered organisations to achieve voluntary compliance effectively and efficiently
• enable high levels of ongoing compliance, transparency and accountability of registered
organisations to their members
• minimise unnecessary red tape and barriers to achieving compliance
• actively encouraging and supporting members to confidently participate in the running of their
organisations.
These common interests are at the centre of the General Manager’s approach to compliance and
enforcement.
Assistance: Our primary tool
Supporting registered organisations to maintain positive and compliant operations
Our approach
The General Manager provides education, assistance and advice to registered organisations to help them
maintain positive regulatory cultures that embed practices of good governance and voluntary compliance.
A focus on information sharing and engagement assists the General Manager and staff in the ROSB to work
with registered organisations to identify barriers to compliance, streamline processes, appropriately
identify and manage risks, and educate and empower registered organisations to drive their own good
governance practices, for the benefit of their members.
3
Section 329A(2) of the RO Act
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The officers of registered organisations are the primary gatekeepers responsible for managing risks
associated with potential non-compliance while promoting member engagement and organisational
transparency. The General Manager understands that supported, engaged, educated and well-informed
officers who are encouraged to “speak-up” and ask questions helps to ensure organisations can self-audit
and achieve voluntary compliance.
What you can expect from us
The General Manager will dedicate significant resources to develop and maintain tools that support
organisations to build competent governance practice and strong self-regulatory cultures.
We will listen carefully to feedback, routinely engage with stakeholders, and gather knowledge from our
daily interactions with registered organisations, to help ensure that our education, advice and assistance
services are meeting the evolving and often individual needs of registered organisations.
We will consult with stakeholders each year to identify upcoming and future priorities.
4
What we expect from you
We expect registered organisations, particularly those encountering challenges in meeting their compliance
obligations and obligations to their members, to engage with our feedback and consultation processes in
order that we can improve our services in the most beneficial way.
Cooperation and working closely together
Our approach
We will seek to foster a regulatory environment which encourages organisations to cooperate and
genuinely engage in self-reporting to secure voluntary compliance, in order to experience improved
outcomes that are faster and more cost effective for the organisation and their members.
Early engagement in relation to specific concerns of non-compliance will assist in tailoring effective
solutions, including through education, voluntary remediation or use of compliance tools that achieve a
proportionate outcome and will likely avoid escalation of the matter. This works best when there is a
pro-active approach and cooperation from the affected registered organisation.
4
This forms part of the ROSB’s broader Education, Advice and Assistance Strategy that will be renewed every three years, through cooperation
and consultation with the Registered Organisations Advisory Committee and the Compliance Practitioners Reference Group.
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What you can expect from us
When organisations and individuals work cooperatively with the General Manager and the staff in the
ROSB, you can expect us to:
• recognise your cooperation
• negotiate tailored resolutions to the matter with you, including the use of alternative enforcement
tools to civil penalty litigation, such as enforceable undertakings, infringement notices, education
and ongoing support
• consider the degree of cooperation provided during an assessment, inquiry or investigation when
determining the appropriate regulatory response including the type of remedy or remedies sought
• in civil penalty matters, take cooperation into account, which may influence submissions or an
agreed position resulting in a reduction in the type of order or amount of any pecuniary penalty
order sought
What we expect from you
We expect registered organisations to work with us cooperatively and negotiate solutions in good faith and
with the needs of members front of mind.
Cooperation can take many forms and degrees and may include:
• voluntarily self-reporting any non-compliance or potential misconduct
• honestly and completely disclosing all information relevant to the non-compliance or potential
misconduct
• providing voluntary assistance during any assessment, inquiry or investigation
• providing evidence in a form that can be used in a court
• making admissions in relation to non-compliance or potential misconduct committed
• any other form of cooperation which reduces the complexity or length of inquiries, investigations or
litigation.
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Assessment: When non-compliance occurs
Our approach
The General Manager understands that non-compliance will occur from time to time. Some may be
incidental and some may be egregious.
The General Manager also understands that the overwhelming majority of people within registered
organisations will make genuine attempts to voluntarily comply with their obligations.
Accidental or trivial non-compliance by organisations and individuals who attempted to comply may be
most appropriately resolved through guidance and assistance. This may include working with organisations
to remediate non-compliance and address concerns about the adequacy of their systems to help ensure
future compliance.
More serious allegations relating to repeated, opportunistic or deliberate contraventions or
misappropriation of funds will involve a greater level of response and allocation of resources than less
serious non-compliance. Deliberate or fraudulent conduct is likely to give rise to a swift, focused and well-
resourced investigation and enforcement action.
What you can expect from us
The ROSB takes a strategic approach to compliance and enforcement interventions. This involves a tiered,
escalating approach that assists in creating a positive regulatory culture and encourages voluntary
compliance, including alignment with the interests of members of the registered organisation.
Where a suspected non-compliance issue exists, the ROSB will take an evidence-based approach to
gathering and analysing relevant facts to:
• identify the cause
• understand the conduct and its scope
• decide the likelihood that a contravention has occurred (and whether it may be repeated)
• evaluate the consequences including the impact on members’ interests.
The ROSB will then take a risk-based approach to determine the appropriate and proportionate regulatory
response to non-compliance.
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In assessing which education, compliance and enforcement interventions will be exercised, the factors we
will consider include, but are not limited to:
• the requirements of the legislation and jurisdictional issues, including whether the General Manager
is required to take certain steps
• the seriousness of the conduct, including the risk of serious harm
• the effect on the members’ interests of both the non-compliant conduct and the proposed education
or compliance response
• whether the conduct was self-reported and the level of cooperation
• steps taken (or proposed to be taken) by the registered organisation to remediate or mitigate the
issues, including improvements that will increase the organisation’s good governance and resilience
against future non-compliance
• the age and duration of the non-compliant conduct and whether it has been repeated
• whether the conduct was inadvertent, caused by a lack of systems and knowledge, was reckless or
whether it demonstrates systemic, opportunistic, or deliberate non-compliance
• the appropriate and proportionate level of response that is an efficient, effective and ethical use of
public resources
• the importance of specific and general deterrence to improve the behaviour of the affected
organisation and encourage positive behavioural change to the entire regulated community
• strategic risks
• the registered organisation’s history of compliance and cooperation
• how to best direct finite resources appropriately to matters that provide the greatest overall public
benefit.
Following this assessment, we will determine a response, which may include:
• general education to the entire regulated community when intelligence suggests wide-ranging, but
low level non-compliance
• specific and tailored education and advice to the registered organisation affected by the
non-compliance
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• advice and assistance on policy, structural and rule changes to encourage ongoing, generational
improvements to underlying good governance
• protected disclosure investigations into allegations raised under the whistleblower scheme
• supervision of, advice to and assistance with internally run investigations and self-driven compliance
processes
• inquiries and investigations into allegations of non-compliant conduct
• rectification and infringement notices
• enforceable undertakings
• litigation and civil penalties
• referrals to other regulatory or law enforcement agencies.
These tools may be used individually or in combination.
Cooperation by the registered organisation may inform the factors we consider and the appropriate
response.
What we expect from you
We expect you to work with the General Manager and ROSB staff to:
• identify underlying root causes for non-compliance
• take steps to minimise further issues and build resilient processes to ensure future compliance.
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Operational activities
Our approach
The General Manager or their delegate will apply the principles of natural justice. This includes providing
opportunities to organisations and persons of interest to respond to issues of potential non-compliance or
adverse report findings, whenever it is possible or appropriate to do so.
The way the ROSB conducts its operational activities is informed by the General Manager’s approach to
compliance, whether that is processing applications and lodgements submitted by regulated entities or
undertaking inquiries and investigations.
The General Manager and the ROSB will approach their compliance activities in a way that is appropriate,
targeted and proportional. The ROSB will aim to avoid unnecessary escalation by tailoring approaches that
are focussed on achieving proportionate outcomes that are in the best interests of the members of
registered organisations.
Information sources
Any person may lodge a complaint regarding registered organisations or of potential or suspected
breaches.
The ROSB obtains information about possible non-compliance in a range of ways, including from:
• organisations and individuals who self-report
• whistleblowers who make a protected disclosure
• the review of financial statements and other documents lodged with the Commission
• referrals from other agencies
• intelligence that is gathered through research and analysis to identify the risk of breaches that would
cause significant harm to members, including from:
– media reporting and other public sources
– proactively engaging with organisations, including periodic reviews of compliance
– undertaking cross-organisational reviews, including audits and surveys of organisations, and
– evaluating information from the public and peak bodies.
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The ROSB receives information from anonymous and confidential sources and, subject to the law, protects
the privacy of anonymous and confidential sources wherever possible.
Where information is received from an anonymous or confidential source, the ROSB may be restricted in its
ability to investigate the matters raised or to raise any allegations of wrongdoing with an organisation or
person of interest.
The General Manager’s compliance powers
During an investigation under section 331 the General Manager has access to statutory powers that can be
used to compel the production of evidence relevant to the investigation.
The General Manager may in certain circumstances give a notice to a person requiring them to:
• give any information or produce any documents relevant to an investigation to the General Manager
or their delegate
• attend before the General Manager or their delegate to give evidence under oath or affirmation and
to produce records or other documents, and
• give other reasonable assistance in relation to an investigation.
A person commits an offence if they fail, intentionally or recklessly, to comply with a requirement made by
the General Manager in respect of a statutory notice.
The General Manager has other powers in relation to documents and may, in certain circumstances, apply
to a magistrate where appropriate during an investigation for the issue of a warrant to seize documents.
Applications and lodgements
Documents lodged with the Commission are assessed against the legislative requirements as to whether
those documents should be filed.
Different types of lodgements are assessed against specific relevant criteria and may be assessed
differently based on risk. For example, Financial Reports may be subject to a primary or advanced review. In
most cases the assessment criteria against which lodgements are assessed is published on the
Commission’s website.
If documents that are lodged with the Commission do not meet legislative requirements, the ROSB may
request that they be amended or resubmitted.
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Protected disclosures – whistleblowers
The RO Act provides a whistleblower scheme and protection to a person who is eligible to be a
whistleblower.
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The disclosable conduct can relate to:
• a federally registered organisation
• an officer of a registered organisation
• an employee of a registered organisation.
If the ROSB receives information regarding disclosable conduct, then the disclosure will in most cases be
investigated by an authorised officer in accordance with the whistleblower provisions in the RO Act. A
whistleblower investigation is different to a section 331 investigation.
An authorised officer does not have the power to compel information in a whistleblower investigation and
must rely on the cooperation of organisations and their officers. While the ROSB endeavours to protect a
request for anonymity by a discloser, this may impact the ability to progress a whistleblower investigation.
For more information regarding protected disclosures please refer to the ROSB’s
Whistleblower Disclosures
website.
Inquiries (section 330)
Following an assessment of the above factors, the General Manager or their delegate may determine it is
appropriate to commence an inquiry. The inquiry can concern whether:
• a reporting unit of an organisation has complied with its financial reporting obligations or its rules
relating to its finances or financial affairs
• a civil penalty provision of the RO Act has been contravened.
The General Manager or their delegate must also conduct a follow up inquiry within 12 months if the
General Manager has notified a reporting unit of contraventions following the completion of a section 331
investigation.
5
Fact Sheet: Protections for Whistleblowers.
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Voluntary cooperation from organisations and individuals is encouraged and recognised during the conduct
of inquiries. A person cannot be compelled to assist an inquiry.
Investigations (section 331)
The RO Act establishes the framework for the conduct of investigations by the General Manager or their
delegate during which certain information can be compelled from third parties.
If the General Manager or their delegate is satisfied there are reasonable grounds for doing so, they may
commence an investigation as to whether:
• a reporting unit of an organisation has complied with its financial reporting obligations or its rules
relating to its finances or financial affairs
• a civil penalty provision of the RO Act has been contravened.
In certain circumstances the General Manager must conduct an investigation.
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This includes where an
auditor’s report identifies certain non-compliance by a reporting unit or where a request is made by a
required number of members of a reporting unit.
An investigation may, but does not have to, follow the making of inquiries or the completion of a protected
disclosure matter.
Investigations will be completed as soon as practicable without compromising the integrity of the
investigation.
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Responding to inquiries and investigations
During or at the end of a protected disclosure, inquiry or investigation the registered organisation or any
person of interest will generally be afforded an opportunity to respond to any allegations of
non-compliance. However, it may not be possible or appropriate to contact the registered organisation or
any person of interest in every case.
Where an organisation or person is invited to provide a response to potential findings, that response will be
voluntary. Providing a response and voluntary assistance may demonstrate cooperation. The General
Manager will be able to consider any response when deciding what enforcement action is appropriate.
6
Sections 332–334, RO Act.
7
Section 335B, RO Act.
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Enforcement outcomes
Our approach
The General Manager or their delegate will decide on what, if any, enforcement outcome is considered
appropriate, having regard to the objects of the RO Act and the factors outlined above in this policy.
The General Manager will draw from a wide range of enforcement outcomes.
When considering regulatory responses to non-compliance, the General Manager will consider genuine
steps taken by an organisation to remedy non-compliance and mitigate against any harms.
The General Manager supports voluntary disclosure and rectification. Examples of remediation and
mitigation include:
• self-reporting, including any concessions made
• cooperation
• re-lodging a document correcting any earlier misleading or incorrect statement, even if that later
lodgement may be out of time
• modifying or improving internal controls or procedures or implementing training to prevent
recurrence where non-compliance arises from a systemic cause
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• active and voluntary review of any control measures
• announcements or sharing of additional information with the members.
What you can expect from us
You can expect that our approach will be appropriate and proportionate to the harm or non-compliance to
achieve necessary deterrence, remediation and compliance in the future.
What we expect from you
We expect registered organisations to take genuine steps to remedy non-compliance and mitigate against
any further harm or non-compliance.
Education, advice and assistance as an outcome
Most compliance concerns can be resolved using an educative response. However, it will not be
appropriate to provide an educative response to serious, systemic, opportunistic, or deliberate
non-compliance or where this does not provide a proportionate response having regard to any harms
suffered.
Enforceable undertakings
The General Manager will use enforceable undertakings when appropriate.
Enforceable undertakings are a valuable tool that are likely to be faster and more cost-effective compared
with court processes. Enforceable undertakings may provide an opportunity for registered organisations
and individuals to be involved in the resolution of a matter to achieve a certain outcome.
They provide a tailored and flexible resolution to issues of non-compliance in a manner that advances the
interests of members of registered organisations. An enforceable undertaking can be made to fit the
specific issues of an organisation. It can include requirements that a person or organisation:
• complete additional training
• publish a statement
• undertake remediation
• make improvements to systems and processes
• enter into a compliance regime
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• take, or not take, any other relevant steps.
Enforceable undertakings are made by agreement between the General Manager or their delegate and an
organisation or individual. The General Manager may accept an enforceable undertaking in circumstances
where:
• potential, likely or suspected non-compliance with provisions of the RO Act has been identified
• the registered organisation or individual entering into the enforceable undertaking is prepared to
voluntarily address the compliance concerns
• the enforceable undertaking will provide an effective and appropriate regulatory outcome that is in
the public interest.
The General Manager may accept an enforceable undertaking at any time, including in conjunction with
other regulatory action. An enforceable undertaking may be initiated by request made by a registered
organisation or individual, or at the initiative of the General Manager.
The General Manager will usually publish an enforceable undertaking on the Commission’s website and an
organisation or individual will be made aware of this as a condition of entering into an enforceable
undertaking.
Rectification notices
A rectification notice is a remedy notice that the General Manager can issue to a reporting unit
(section 336(2)(a)) at the conclusion of an investigation if the General Manager is satisfied that a reporting
unit has contravened certain provisions or their rules relating to their finances or financial administration.
A rectification notice can require a reporting unit to take specified actions within certain time periods to
rectify a contravention notified to the reporting unit. A reporting unit must comply with a rectification
notice.
Rectification notices do not require the consent of the organisation, though the organisation’s response to
the investigation may be relevant to formulating the requirements contained in the rectification notice.
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Infringement notices
The General Manager may appoint infringement officers. Infringement officers may issue infringement
notices if they reasonably believe that a person has contravened certain provisions of the RO Act or
Regulations.
An infringement notice will:
• set out the particulars of an alleged contravention of an offence or civil penalty provision that the
infringement officer believes has been contravened
• specify an amount to be paid
• be given within 12 months after the day on which the contravention is alleged to have taken place.
A person who receives an infringement notice can choose to:
• pay the amount specified in the notice. Agreeing to pay an infringement notice does not constitute
an admission of guilt by the person who receives it but will prevent subsequent court proceedings in
relation to the contraventions specified in the notice.
• NOT pay the amount. Court proceedings may then be brought against them in relation to the alleged
contravention(s).
Infringement notices allow the Commission to provide timely and cost-efficient enforcement outcomes
which may be appropriate in some circumstances as an alternative to civil penalty litigation, particularly for
less serious matters, or where unintentional but repeated or systemic contraventions are identified.
Civil penalty litigation
The General Manager can commence legal proceedings as another enforcement option in respect of a
contravention of a civil penalty provision. It is generally reserved for more serious non-compliance and is an
essential regulatory mechanism for enforcing the law because:
• enforcing the law and obtaining Court orders sends a powerful public message to others not to
engage in similar conduct (general deterrence)
• stopping and deterring those contravening legislation from engaging in unlawful conduct now and in
the future makes the need to comply with Commonwealth laws real (specific deterrence)
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• clarifying the law helps the community understand the various obligations and rights arising from
Commonwealth workplace laws.
The General Manager will only commence legal proceedings (including appeals against a court decision) if
the General Manager considers that there is sufficient evidence and appropriate grounds to do so, and it
would be in the public interest having regard to the factors above.
The General Manager may also commence legal proceedings to enforce compliance with an enforceable
undertaking or rectification notice.
In legal proceedings the General Manager can seek orders that a person:
• pay a pecuniary penalty for contravention of a civil penalty provision
• compensate an organisation for damage it has suffered
• be disqualified from holding office
• any other orders that are appropriate.
The General Manager does not have a general power to enforce the rules of a registered organisation.
Members of a registered organisation can seek to enforce the rules under the RO Act. Registered
organisations can also take their own actions to apply for a compensation order for a contravention of a
provision of the RO Act.
In conducting the proceedings, the General Manager acts as a model litigant. The Federal Court is
responsible for determining what orders are made and appropriate in a case and the amount of any civil
penalty. The General Manager may make submissions to the Court regarding the seriousness of the
conduct and what the General Manager considers to be appropriate orders.
The General Manager will seek penalties that are appropriate to the nature of the conduct and that will
achieve general and specific deterrence. The General Manager will consider a range of factors including
relevant sentencing principles, cooperation and remediation in relation to the submissions on penalty
ranges.
In civil penalty matters, courts in assessing the appropriate penalty will usually give weight to cooperation
provided and contrition expressed by a respondent, along with other mitigating and aggravating factors.
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In general, the earlier and more substantive the cooperation provided, the greater weight that will be given
to that cooperation by a court. Cooperation by a respondent in civil penalty proceedings can take the form
of:
• making concessions and admissions, including in relation to liability
• agreeing facts that are not in contest, including entering into an agreed statement of facts to limit
the matters in dispute
• making joint or agreed submissions in relation to orders and penalty.
Resolving litigation by agreement
If appropriate, a matter may be resolved by agreement with a party. This may involve contraventions being
admitted or an agreed penalty being submitted to the Court. The Court ultimately decides on what penalty
to impose but may accept the agreed penalty if it is satisfied that the amount is appropriate.
In settling civil penalty proceedings, the General Manager will expect a full and frank statement of agreed
facts that:
• contains all background facts necessary for the Court to understand the circumstances of the
respondent’s conduct in relation to the agreed contraventions
• sets out all the facts necessary to establish the requisite elements of the agreed contraventions
• properly reflects the respondent’s role in matters which are the subject of the agreed contraventions
• where relevant to the Court’s understanding of the matter, identifies other persons or entities
involved in the misconduct
• does not contain any mitigating facts or circumstances that a respondent is not able to properly
substantiate.
An agreement to settle a legal proceeding may be reached at an early stage of the proceeding or a
mediation, or at any later stage of the proceeding. The General Manager will discontinue legal proceedings
only if it is appropriate to do so.
Publicising compliance and enforcement
The General Manager may publish information regarding compliance, enforcement and other regulatory
activities, as a method of educating organisations and encouraging compliance.
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Disclosure of information to relevant bodies
The General Manager or an authorised official:
• can refer information that is acquired in the exercise of powers and functions under the RO Act to
other relevant bodies
• may disclose information acquired in relation to a possible contravention of the law to a member of
an Australian police force or other enforcement agency if it will assist in the administration or
enforcement of a law of the Commonwealth, a State or a Territory. In some circumstances, the RO
Act requires disclosure.
8
The General Manager may:
• disclose information to a third party where it is necessary or reasonable to do so in the course of
performing their functions or exercising their powers.
Review of decisions
If an individual or organisation or reporting unit is not satisfied with the process of an inquiry or
investigation, or with the outcome of the inquiry or investigation, a request for a review may be made, in
writing, to:
The General Manager
Fair Work Commission
GPO Box 1994
MELBOURNE VIC 3001
Email: [email protected]u
The Commonwealth Ombudsman can review the actions taken by many Commonwealth government
agencies, including the ROSB. The Commonwealth Ombudsman may be contacted on 1300 362 072 or at
www.ombudsman.gov.au
.
In addition, section 604 of the Fair Work Act 2009 provides that a person who is aggrieved by certain types
of decision issued by the General Manager or their delegate may lodge an appeal with the Commission.
8
See sections 329G and 337CD of the RO Act.
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Limitations
While the ROSB and the General Manager intend to comply with this policy in carrying out functions under
the RO Act, a failure to so does not affect the validity of any conduct taken. This policy is not a direction
issued by the General Manager for the purposes of subsection 343B(5) of the RO Act and should not be
taken as a substitute for legal advice.
Contacting the ROSB
Any person is welcome to contact the ROSB to:
• raise concerns about the conduct of registered organisations
• raise concerns about officers of registered organisations
• ask questions about general regulatory requirements.
Our contact details are:
• Email – [email protected]
• Phone – 1300 341 665
• Mail – GPO Box 1994, Melbourne, VIC 3001
We welcome feedback. It helps us to improve how we assist and support registered organisations.
Feedback can be sent to [email protected]u
.
