Key takeaways from the FWC and FWO Annual Reports

The Fair Work Commission (FWC) and the Fair Work Ombudsman (FWO), two independent Australian government organisations dedicated to regulating Australia’s workplace relations systems, have recently released their latest annual reports for the years 2021-22. We have set out some of the major takeaways from the two reports for this financial year as follows. By Kim Hodge, Partner, Squire Patton Boggs.

Applications in the FWC

The FWC dealt with 34,122 applications lodged in 2021-22. The most common application types were unfair dismissal applications (38% of total applications), general protections involving dismissal applications (15% of total applications), and enterprise agreement approval applications (13% of total applications), which reflected trends in previous years.

Enterprise Agreements

The FWC has reduced median enterprise agreement approval times to 15 days, whereas agreements without undertakings won approval in 12 days.

Sexual Harassment

The FWC received 29 applications seeking orders to stop sexual harassment at work.

Since the jurisdiction commenced, the Commission has issued 4 decisions finalising applications for an order to stop sexual harassment or both bullying and sexual harassment. In one decision, the application was dismissed as incomplete.

In the three other cases, the Commission dismissed the applications on the basis that an order was not necessary to prevent future harm. Most applications were discontinued early in the case management process. The remainder of the applications were resolved or discontinued after a conference before a Commission Member.

Casual Conversion

31 applications concerning casual conversion were lodged. The Commission issued one decision dismissing the application on jurisdictional grounds, with the Commission finding that the employer was not obliged to offer the employee casual conversion. The other applications were either resolved through conciliation or discontinued.

Enforcement activities in the FWO

The FWO initiated 137 cases in 2021-22, up 80% from the previous year and exceeding its target of 65-75. The Ombudsman recovered more than $532 million for 384,805 people, which was 2.5 times higher than the previous financial year.

Large Corporate Underpayments

In 2020 the FWO established a dedicated Large Corporates branch to support specialised investigations into corporate sector underpayments. In 202122 nearly $279 million was returned to more than 267,000 underpaid employees from large corporate employers, more than 6 times the amount returned in the previous financial year. Of the amount recovered, 68% was self-disclosed.

Targeted Compliance Work

The FWO’s targeted compliance work, utilising intelligence from a range of sources to target employers where they suspect non-compliance with workplace laws (including surprise audits) recovered more than $108 million for 20,267 underpaid employees.

810 targeted compliance activities were initiated, and most contraventions related to:

underpayment of hourly rate

failure to correctly pay weekend penalty rates

failure to correctly pay casual loading penalty rates

pay-slip and record-keeping contraventions.

The university sector has been added to the FWO’s priorities, with the FWO taking high-level enforcement action against a number of universities next financial year and urges all universities to prioritise their compliance.