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Too Soft Or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work Ombudsman

Published online by Cambridge University Press:  24 January 2025

Tess Hardy  and
John Howe
Tess Hardy
Affiliation:
RMIT University, Australia
John Howe
Affiliation:
Centre for Employment and Labour Relations Law, University of Melbourne, Australia
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Abstract

This article reports on the use of enforceable undertakings by the Australian employment standards enforcement agency, the Office of the Fair Work Ombudsman (FWO), and its predecessor, the Workplace Ombudsman. Enforceable undertakings are used by the FWO as an alternative enforcement tool to court litigation in relation to breaches of the Fair Work Act 2009 (Cth), which regulates wages, working hours and other minimum employment conditions. Proponents of enforceable undertakings argue that they deliver value to regulatory agencies as a responsive alternative to traditional, punitive enforcement action. On the other hand, critics have raised concerns about the accountability and effectiveness of this enforcement tool. The authors provide a critical analysis of the FWO's use of enforceable undertakings, including consideration of the decision-making process, content, monitoring and enforcement of undertakings. The analysis is based on a review of all enforceable undertakings concluded in the period from 1 July 2008 to 30 June 2012, as well as qualitative interviews with approximately 60 inspectors, managers and lawyers of the FWO, and a number of specialist workplace relations lawyers. The article reveals that the FWO has made limited but promising use of enforceable undertakings in the review period. Through deployment of enforceable undertakings, the FWO has demonstrated that it has a mix of regulatory approaches available to it that are consistent with the key principles of responsive regulation. The number of enforceable undertakings accepted by the FWO, however, remains fairly limited. We set out a number of ways in which the regulator may maximise the utilisation of enforceable undertakings, and more fully realise the regulatory benefits of this particular compliance tool.

Type
Research Article
Information
Federal Law Review , Volume 41 , Issue 1 , March 2013 , pp. 1 - 33
Copyright
Copyright © 2013 The Australian National University

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Footnotes

The research carried out for this article has been supported by a grant from the Australian Research Council (LP099990298) and is part of a wide research project on the activities and influence of the Fair Work Ombudsman (FWO). This project is partly funded by the FWO. The authors would like to thank the FWO and the anonymous interviewees and participants for cooperating with this research. We would also like to thank Jack Lang for providing research assistance.

References

1 It should be noted, however, that contravention of an enforceable undertaking does not itself attract a civil penalty.

2 From 2006, the federal agency responsible for enforcement, now called the Office of the Fair Work Ombudsman (FWO), was given substantially increased resources along with new powers for labour inspectors, coupled with an earlier, significant increase in the penalties that courts are able to impose for breach of these standards. See Hardy, Tess, ‘A Changing of the Guard: Enforcement of Workplace Relations Laws since Work Choices and Beyond’ in Forsyth, Anthony and Stewart, Andrew (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy (Federation Press, 2009)Google Scholar and Hardy, Tess and Howe, John, ‘Partners in Enforcement? The New Balance between Government and Trade Union Enforcement of Employment Standards in Australia’ (2009) 23 Australian Journal of Labour Law 306.Google Scholar

3 Technically-speaking, the FWO has entered into 29 enforceable undertakings, however, this includes four enforceable undertakings with the same individual — Mr Sadamatsu Katsuyoshi — in his capacity as director of four separate companies all of which were in liquidation at the time the enforceable undertaking was made. It also includes the three enforceable undertakings made prior to the commencement of the Fair Work Act.

4 Our research involved semi-structured qualitative interviews with Fair Work Inspectors (and former Inspectors) in capital cities and some regional areas, as well as with senior managerial staff and lawyers at the FWO with responsibility for decision-making and/or policy in relation to the agency's use of sanctions such as enforceable undertakings. The FWO assisted in the selection of these interviewees. The interviews, carried out in 2010, 2011 and 2012, adopted a semi-structured format using a common set of questions. In addition to reviewing the content of enforceable undertakings, we have researched both internal and publicly available FWO documentation, including relevant FWO Guidance Notes. This research was supplemented by a small number of interviews with legal practitioners with experience in advising clients in relation to FWO enforcement activity. We located practitioners through a variety of sources, including professional contacts, participation in court cases, profiles at law firm websites and publications. Our interviewees were either employment law specialists in large national law firms or partners in boutique workplace practices and traditional labour law firms.

5 See, eg, Nehme, Marina, ‘Enforceable Undertakings in Australia and Beyond’ (2005) 18 Australian Journal of Corporate Law 68Google Scholar; Parker, Christine, ‘Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission's Use of Enforceable Undertakings’ (2004) 67 Modern Law Review 209CrossRefGoogle Scholar; Johnstone, Richard and King, Michelle, ‘A Responsive Sanction to Promote Systematic Compliance? Enforceable Undertakings in Occupational Health and Safety Regulation’ (2008) 21 Australian Journal of Labour Law 280Google Scholar; Johnstone, Richard and Parker, Christine, Enforceable Undertakings In Action — Report of a Roundtable Discussion with Australian Regulators (Working Paper No 71, National Research Centre for Occupational Health and Safety, February 2010).CrossRefGoogle Scholar

6 Bennett has argued that historically, federal governments have maintained considerably more direct influence over the employment standards enforcement agency than other institutions within the federal labour relations system, such as the courts and the conciliation and arbitration tribunal: Bennett, Laura, Making Labour Law in Australia: Industrial Relations, Politics and Law (Law Book Co, 1994) 146.Google Scholar Moreover, the establishment of the Workplace Ombudsman in 2007 was somewhat controversial due to allegations that the agency it replaced, the Office of Workplace Services, had been subject to political influence. See Maconachie, Glenda and Goodwin, Miles, ‘Does Institutional Location Protect from Political Influence? The Case of a Minimum Labour Standards Enforcement Agency in Australia’ (2011) 46(1) Australian Journal of Political Science 105.CrossRefGoogle Scholar

7 The Director of the Fair Work Building Industry Inspectorate now has the same functions and powers, in relation to a building matter, that the Fair Work Ombudsman has under s 715 of the Fair Work Act. See Fair Work (Building Industry) Act 2012 (Cth), s 59D.

8 See, eg, Parker, ‘Restorative Justice', above n 5. The arguments in favour of enforceable undertakings are discussed in further detail in Section II.

9 Parker calls this the ‘fairness’ critique: Parker, ‘Restorative Justice', above n 5, 211. See, eg, Yeung, Karen, Securing Compliance: A Principled Approach (Hart Publishing, Oxford, 2004), 205–6.Google Scholar

10 Parker, ‘Restorative Justice', above n 5, 211, citing numerous commentators critical of alternatives to prosecution and deterrence as an approach to regulatory enforcement and compliance.

11 See the discussion in Section V of the article.

12 Colin Scott, ‘Analysing Regulatory Space: Fragmented Resources and Institutional Design’ [2001] Public Law 329, 331.

13 For an introduction to the wider literature on regulatory enforcement, see Morgan, Bronwyn and Yeung, Karen, An Introduction To Law And Regulation: Text And Materials (Cambridge University Press, 2007), 176–220.CrossRefGoogle Scholar

14 In particular, studies of the use of undertakings by the Australian Competition and Consumer Commission (ACCC), occupational health and safety (OHS) regulators, and the Australian Securities and Investments Commission (ASIC) have identified a number of advantages and disadvantages of this particular enforcement tool. For examples, see the references listed in n 5 above.

15 Macrory, Richard, Regulatory Justice: Making Sanctions Effective (Final Report, Better Regulation Executive, November 2006) 65.Google Scholar

16 Johnstone and King, above n 5, 283, quoting Parker, Christine, The Open Corporation: Effective Self-Regulation and Democracy (Cambridge University Press, 2002).CrossRefGoogle Scholar

17 Ayres, Ian and Braithwaite, John, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992)CrossRefGoogle Scholar; Braithwaite, John, Restorative Justice and Responsive Regulation (Oxford University Press, 2002).Google Scholar

18 See Johnstone and Parker, above n 5, 19-30.

19 Ibid 66.

20 Johnstone and King, above n 5, 285.

21 Braithwaite, above n 17.

22 Parker, ‘Restorative Justice', above n 5, 220.

23 Ibid 211.

24 Andrews, Neil, ‘If the Dog Catches the Mice: The Civil Settlement of Criminal Conduct under the Corporations Act and the Australian Securities and Investments Act’ (2003) 15 Australian Journal of Corporate Law 1, 19.Google Scholar

25 Ibid; see also Richardson, Kristy, ‘Judicial Review of Enforceable Undertakings under the Workplace Health and Safety Act 1995’ (2007) 27 Qld Lawyer 250Google Scholar; Yeung, above n 9; Zumbo, Frank, ‘Section 87B Undertakings: There's No Accounting for Such Conduct’ (1997) 5 Trade Practices Law Journal 121Google Scholar; and Nehme, Marina, ‘Expansion of the Powers of the Administrative Appeals Tribunal in relation to Enforceable Undertakings’ (2007) 25 Company and Securities Law Journal 116.Google Scholar

26 For example, Yeung argues that poor processes for the making of enforceable undertakings can mean that ‘the use of undertakings may tend to thwart, rather than nurture, the constitutional values of transparency, accountability, participation and substantive fairness'. Yeung, above n 9, 242.

27 See also Nehme, Marina, ‘Justice to Outsiders Through Undertakings’ (2009) 9 Queensland University of Technology Law and Justice Journal 85.Google Scholar

28 Nehme, ‘Enforceable Undertakings in Australia and Beyond', above n 5, 87.

29 See, eg, Johnstone and Parker, above n 5.

30 For example, in its review of federal civil and administrative penalties, the Australian Law Reform Commission noted that ‘in the interests of certainty, consistency and fairness, concerns expressed in relation to the scope of enforceable undertakings warrant legislative address. There should be clearly articulated legislative parameters guiding the scope of undertakings that are appropriate for the regulated community to offer, and for regulators to accept.’ See Australian Law Reform Commission, ‘Principled Regulation: Federal Civil and Administrative Penalties’ (ALRC Report No 95, March 2003), 598.Google Scholar

31 Yeung, above n 9, 242.

32 Nehme, Marina, ‘Enforceable Undertakings: Are they Procedurally Fair?’ (2010) 32 Sydney Law Review 471, 475.Google Scholar

33 See, eg, Parker, ‘Restorative Justice', above n 5; Johnstone and King, above n 5; and Nehme, ‘Enforceable Undertakings: Are they Procedurally Fair?', above n 32.

34 Parker, ‘Restorative Justice', above n 5, 211.

35 Hardy, Tess and Howe, John, ‘Accountability and the Fair Work Ombudsman’ (2011) 18 Australian Journal of Administrative Law 127.Google Scholar

36 Parker, ‘Restorative Justice', above n 5, 239 (citations omitted).

37 Ibid 239–40.

38 Ibid 212. See also Johnstone and King, above n 5; Nehme, ‘Enforceable Undertakings in Australia and Beyond', above n 5.

39 Parker, ‘Restorative Justice', above n 5, 212.

40 Ibid 222.

41 See Nehme, ‘Justice to Outsiders', above n 27, 77–8.

42 The introduction of s 715 of the Fair Work Act — which provides for the making of statutory enforceable undertakings by FWO after 1 July 2009 — essentially recognised and reflected the reality of what was already occurring in practice. In particular, in 2008/2009, the Workplace Ombudsman entered into three ‘enforceable undertakings’ under the common law. These enforceable undertakings were framed as common law deeds enforceable in court in the event of contravention. Since the introduction of a statutory mechanism, no further common law enforceable undertakings have been concluded.

43 Explanatory Memorandum, Fair Work Bill 2008 (Cth), 400.

44 Such provisions can include statutory minimum employment standards set directly by the Fair Work Act (eg, the National Employment Standards), or working conditions arising from instruments made under the Fair Work Act, such as industry-level ‘modern awards', or registered enterprise agreements.

45 This can include persons who directly contravene the provision, such as employer companies, as well as persons who may be involved in a contravention. See Fair Work Act s 550.

46 However, in a bid to try to address systemic non-compliance within these more complex structures and working arrangements, the FWO has developed a new tool known as a ‘proactive compliance deed.’ These deeds are similar in many ways to enforceable undertakings, except that they are made under the common law rather than the Fair Work Act and therefore are not constrained, or enabled, by statutory provisions. As at 30 June 2012, the FWO had entered into four such deeds, sometimes known as ‘deeds of proactive compliance', with McDonald's Australia Ltd, Domino's Pizza Enterprises Ltd, Red Rooster Foods Pty Ltd and Spotless Services Ltd respectively.

47 See Fair Work Ombudsman, Guidance Note 4 — Enforceable Undertakings Policy (20 July 2011) <http://www.fairwork.gov.au/fwoguidancenotes/GN-4-FWO-Enforceable-Undertakings-Policy.pdf> (‘EU Policy’).

48 The factors which are relevant to determining whether a particular matter is considered to be in the ‘public interest’ is set out in some detail in a separate guidance note. See Fair Work Ombudsman, Guidance Note 1 — Litigation Policy (20 July 2011) <http://www.fairwork.gov.au/fwoguidancenotes/GN-1-FWO-Litigation-Policy.pdf>. There are no factors which are specifically used to determine whether an EU enforceable undertaking is in the ‘public interest'.

49 EU Policy, above n 47, 4-5.

50 Ibid 5.

51 See Enforceable Undertaking between Cotton On Services Pty Ltd and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 3 June 2010.

52 See various enforceable undertakings between Mr Sadamatsu Katsuyoshi and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 5 September 2011.

53 Eight enforceable undertakings were made in the 2011-2012 financial year.

54 These figures were provided to us by the FWO.

55 See Nehme, ‘Enforceable Undertakings in Australia and Beyond', above n 5, 69.

56 While the numbers in the WO/FWO Annual Reports vary somewhat, it appears that the annual number of civil penalty litigation proceedings commenced by the FWO (excluding enforceable undertakings approved for litigation) declined from a peak of approximately 78 in 2008–2009 to 53 in 2009–2010. In 2010–2011, the Annual Report states that there were 55 civil penalty litigation matters commenced. However, it is not clear whether this figure also includes ‘enforceable undertakings approved for negotiation', the number of which is not specified. See Fair Work Ombudsman, Annual Report 2010-2011, 47–48. The FWO's website lists 34 litigation matters commenced in 2011–2012.

57 Under the Fair Work Act, the FWO assumed responsibility for enforcing anti-discrimination and ‘sham contracting’ laws in the Fair Work Act, in addition to its responsibility for prosecuting breaches of regulation relating to maximum working hours and minimum wages. The latter ‘time and wages’ issues were traditionally the sole mandate of the federal labour inspectorate. The expanded mandate requires resources being directed to matters which are more difficult to prove, and which raise new opportunities for improving employer behaviour. See generally Howe, John, Hardy, Tess and Cooney, Sean, ‘Mandate, Discretion and Professionalisation at an Employment Standards Enforcement Agency: An Antipodean Experience’ (2013) 35 Law & Policy 1.CrossRefGoogle Scholar

58 FWO Interview: FWLI.

59 See, eg, Enforceable Undertaking between Super A-Mart Pty Ltd and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 17 October 2011.

60 Johnstone and Parker, above n 5, 19.

61 See, eg, Fair Work Ombudsman, Annual Report 2010-2011, 48.

62 Contrast, for example, the Department of Employment and Industrial Relations in Queensland, which has responsibility for enforceable undertakings in that State's OHS jurisdiction: Johnstone and King, above n 5, 305–6.

63 FWO Interview: FWLI.

64 FWO Interview: FWML.

65 Nicholas Wilson, Fair Work Ombudsman, quoted in Johnstone and Parker, above n 5, 41.

66 In particular, Nicholas Wilson has previously commented that: ‘We will be expecting to continue with enforceable undertakings under the legislation and to ramp them up pretty considerably. We take roughly about 80 litigations per year nationally. I can see a role for about the same number of enforceable undertakings in the future.’ Quote extracted from Johnstone and Parker, above n 5, 41.

67 Ai Group, Submission to the Fair Work Act Review Panel, Review of the Fair Work Act 2009, 29 February 2012. See also John Edwards, Ron McCallum and Michael Moore, Towards More Productive and Equitable Workplaces: An Evaluation of the Fair Work Legislation, Australian Government, Canberra, June 2012 (Fair Work Act Review Report).

68 FWO Interview: FWLF. See also FWO Interview: FWLE.

69 FWO Interview: FWMS.

70 FWO Interview: FWLF.

71 Johnstone and Parker, above n 5, 42.

72 For example, FWO Interview: FWMG; FWO Interview: FWLI.

73 FWO Interview: FWLI. See also FWO Interview: FWMG.

74 FWO Interview: FWIS. This view was echoed by a FWO lawyer: FWO Interview: FWLD.

75 Based on various FWO Interviews. See, eg, FWLF, FWLE.

76 External Interview: EXE.

77 FWO Interview: FWLF.

78 FWO Interview: FWMS.

79 The briefing document generally sets out, in a matrix form, the specific contraventions under the relevant instrument, the elements of each contravention and the evidence (if any) in support of each element. In many respects, the briefing document used in relation to enforceable undertakings is very similar to that prepared in anticipation of litigation.

80 See Delegation of Powers and Functions issued by the Fair Work Ombudsman on 24 March 2011 and Fair Work Act s 683. One of our interviewees confirmed that the approval of the Fair Work Ombudsman himself is always sought before negotiating an enforceable undertaking: FWO Interview: FWMS.

81 FWO Interview: FWLI.

82 FWO Interview: FWMS.

83 FWO Interview: FWIS.

84 In particular, this interviewee observed: ‘We still always applied a pretty high threshold because you wanted to be in a position where you could say, “Look, it's either the EU or we're going to Court.” So if it wasn't at a level where you could ultimately take it to Court, it would make it a hollow threat, and we would never make that type of hollow threat. So we wanted to be in a position where if they said, “No, get stuffed” in relation to the EU, we could go down that course. So well, we gave you a choice, you've made an election.’ External Interview: EXE.

85 FWO Interview: FWMS.

86 See Australian Law Reform Commission, above n 30.

87 Unlike many of the other jurisdictions with the power to use enforceable undertakings, the FWO's decision to enter (or not enter) into enforceable undertakings under the Fair Work Act is exempted under the Administrative Decisions (Judicial Review) Act 1976 (Cth). While there is still scope to seek review of these decisions under the original jurisdiction of the courts in cases of jurisdictional error, this would be presumably a difficult option to pursue. For comment, see Hardy and Howe, ‘Accountability and the Fair Work Ombudsman', above n 35.

88 See the comparative data in Johnstone and King, above n 5. For example, in the first three years after the ACCC was authorised to accept enforceable undertakings, the ACCC concluded 14 undertakings in the first year, 35 in the second and 39 in the third year after this tool was introduced. In some years, such as 2007, the ACCC accepted 99 enforceable undertakings.

89 FWO Interview: FWIP; FWO Interview: FWIR.

90 FWO Interview: FWIL.

91 Based on comments made in FWO Interview: FWLD.

92 FWO Interview: FWML.

93 FWO Interview: FWMS.

94 Although inadequate resourcing is a perennial challenge of labour inspectorates, the FWO has been relatively well resourced until recent budget cuts. The 2010-2011 Portfolio Budget Statement states that in 2009–2010, the funding received from the federal government was over $144 million. This was estimated to decrease to just over $134 million in the 2010–2011 and 2011–12 financial years. The 2012 federal budget included further funding cuts to the FWO for the 2012–2013 financial year: see Workplace Express, ‘Budget 2012: IR Spending Drops', 8 May 2012.

95 See, eg, Enforceable Undertaking between Signature Portrait Studios Pty Ltd and Lyn Brabban and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 28 March 2011.

96 External Interview: EXLA.

97 FWO Interview: FWLF.

98 FWO Interview: FWLD.

99 EU Policy, above n 47, 8. The Policy states, however, that the person giving an enforceable undertaking may request that certain information, such as information which is commercial in confidence or contains personal details of an individual, is not made publicly available.

100 See, eg, Enforceable Undertaking between Toys R Us (Australia) Pty Ltd (Toys R Us) and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 21 January 2011.

101 Based on comments made in FWO Interview: FWLB.

102 Background information normally provides a brief overview of the company size, the industry and the nature of the contraventions.

103 FWO Interview: FWMH.

104 The issue of admissions in enforceable undertakings being subsequently used in court proceedings has been raised in respect of the ACCC, which has, on occasion, combined enforceable undertakings with court action via a consent order or contested proceedings. See, eg, Australian Competition and Consumer Commission v Colgate-Palmolive Ltd [2002] FCA 619. For further discussion, see Nehme, Marina, ‘Enforceable Undertaking and its Impact on Private Lawsuit’ (2008) 22 Australian Journal of Corporate Law 275.Google Scholar

105 See Australian Law Reform Commission, above n 30, 603.

106 Yeung, cited in Australian Law Reform Commission, above n 30, 605.

107 Cf with the ACCC which is entitled to bring legal proceedings in relation to the same or a related matter which is the subject of an enforceable undertaking. See Australian Competition and Consumer Commission, Section 87B of the Trade Practices Act — Guidelines on the Use of Enforceable Undertakings by the Australian Competition and Consumer Commission, (2009), 6.

108 See EU Policy, above n 47, 5. A note to s 715(4) of the Fair Work Act also states that: ‘A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.’ However, the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) notes that, in circumstances where a person has brought enforcement proceedings against a firm or individual who has previously entered into an enforceable undertaking in relation to the same contravention(s), ‘[i]t is envisaged that a court would take an enforceable undertaking into account when making orders to remedy a contravention, including when it is considering whether to impose a pecuniary penalty.’ See Explanatory Memorandum, Fair Work Bill 2008 (Cth), [2670].

109 See Nehme, ‘Justice to Outsiders', above n 27, 90, citing Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 35.

110 See Cotton On Group Services Pty Ltd Enforceable Undertaking, above n 51, compared with the Super A-Mart Enforceable Undertaking, above n 59.

111 FWO Interviews: FWLG and FWLI.

112 FWO Interview: FWLD. Another lawyer also commented that in relation to enforceable undertakings: ‘there's a template that just has the bare minimum, it's just formatted in the way that we want them formatted, but in terms of the content it's always dependent on each individual case.’ FWO Interview: FWLB.

113 See, eg, Enforceable Undertaking between Irvine's Transport (Pt. Pirie) Pty Ltd and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 13 December 2010.

114 See, eg, Enforceable Undertaking between eJack Pty Ltd and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 21 January 2011.

115 See, eg, Enforceable Undertaking between Ascot Haulage (NT) Pty Ltd & Anor and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 15 February 2011.

116 See, eg, Enforceable Undertaking between CFC Retail Pty Ltd and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 4 March 2011.

117 See, eg, Signature Portrait Studios Enforceable Undertaking, above n 95.

118 See, eg, Cotton On Enforceable Undertaking, above n 51.

119 See, eg, Enforceable Undertaking between CMA Corporation Ltd & Ors and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 15 June 2011.

120 See Enforceable Undertaking between Pilbara Iron Company (Services) Pty Ltd and the Commonwealth of Australia (as represented by the Office of the Workplace Ombudsman) dated 26 March 2009.

121 See Super A-Mart Enforceable Undertaking, above n 59.

122 Parker, ‘Restorative Justice', above n 5, 238–9; see also Johnstone and King, above n 5, 283–4. This conceptualisation of compliance is drawn from Parker, ‘The Open Corporation', above n 16.

123 External Interview: EXE.

124 External Interview: EXLA.

125 See, eg, Toys R Us Enforceable Undertaking, above n 100.

126 External Interview: EXLA.

127 See the discussion of the Maintenance Cooperation Trust Fund in Estlund, Cynthia, Regoverning the Workplace: From Self-Regulation to Co-Regulation (Yale University Press, 2010) 117-121.Google Scholar

128 See Parker, ‘The Open Corporation', above n 16, 43–61; Parker, ‘Restorative Justice', above n 5, 253; Johnstone and King, above n 5, 284–5.

129 See Nehme, ‘Expansion of the Powers', above n 25, 117, citing Australian Competition and Consumer Commission v Woolworths (South Australia) Pty Ltd (2003) 198 ALR 417, 433.

130 FWO Interview: FWMP. Similar concerns were expressed in the External Interview: EXC.

131 The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) committed the federal government to a review of the operation of the legislation two years after its full commencement (that is, after 1 January 2012). The review was conducted in the first half of 2012 by an expert panel, comprising Reserve Bank Board Member Dr John Edwards, former Federal Court Judge, the Honourable Michael Moore and Professor Emeritus Ron McCallum AO. See Fair Work Act Review Report, above n 67.

132 Maritime Union of Australia, Submission to the Fair Work Act Review Panel, Review of the Fair Work Act 2009, Undated, 7.

133 External Interview: EXLB.

134 Maritime Union of Australia, above n 132, 7. The Fair Work Act Review Panel declined to recommend any changes to the statutory regime concerning enforceable undertakings: see Fair Work Act Review Report, above n 67.

135 See Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 [46], cited in Nehme, ‘Justice to Outsiders', above n 27, 93.

136 Fair Work Act s 715(3).

137 In particular, s 545(1) of the Fair Work Act states that the federal courts any make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. It should be noted that there are some limitations on orders made in relation to costs (Fair Work Act s 570) and orders made in relation to contraventions of those civil penalty provisions which deals with reasonable business grounds and protected action ballot orders (Fair Work Act ss 44(2), 463(3) and 745(2)).

138 Parker, Christine, ‘Regulator-Required Corporate Compliance Program Audits’ (2003) 25 Law & Policy 221, 237.CrossRefGoogle Scholar

139 See the obligations imposed on Ms Lynne Brabban in the Signature Portrait Studios Enforceable Undertaking, above n 95.

140 Nehme, ‘Justice to Outsiders', above n 27, 91.

141 Ibid.

142 See, eg, Parker, ‘Regulator-Required Corporate Compliance', above n 138, in relation to the ACCC; Nehme, ‘Justice to Outsiders', above n 27, commenting on ASIC; Johnstone and King, above n 5, in relation to OHS regulators.

143 For example, the Fair Work Ombudsman has entered into an enforceable undertaking with a company, Fueltown Motors Pty Ltd, and four individuals, who were allegedly involved in the relevant contraventions of workplace relations laws. One of these individuals was the director of the company, the other three individuals were described as being ‘involved in the management of the business.’ See Enforceable Undertaking between Fueltown Motors Pty Ltd, Arthur Nestor, Tom Nestor, Brooke Nestor and Jennifer Tomkinson and the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) dated 24 May 2011.

144 FWO Interview: FWLI.

145 Nehme, ‘Justice to Outsiders', above n 27, 90.

146 FWO Interview: FWMS.

147 For example, as part of the Fueltown enforceable undertaking, the company and each of the four individuals undertake to ‘ensure that all businesses managed by any or all of Arthur Nestor, Tom Nestor, Brooke Nestor and Jennifer Tomkinson comply at all times and in all respects with the Fair Work Act and other applicable industrial instruments…by developing systems and processes to ensure ongoing compliance with Commonwealth workplace laws.’ See Fueltown Motors Enforceable Undertaking, above n 1433.

148 See, eg, CFC Retail Enforceable Undertaking, above n 116.

149 Nehme, ‘Justice to Outsiders', above n 27, 95.

150 Various FWO interviews: FWLF, FWLE and FWLD.

151 Once agreed, a party to an enforceable undertaking can only vary or withdraw from the agreement with the consent of the FWO. The FWO's EU Policy provides that consent will only be given where the alleged wrongdoer can demonstrate that: a) compliance with the EU is impractical or ineffective; or b) there has been a relevant material change which renders variation or withdrawal appropriate. See Fair Work Act s 715(3); and EU Policy, above n 47, 6.

152 Based on comments made in FWO Interview: FWLD.

153 FWO Interview: FWME.

154 Johnstone and King, above n 5, 313. See also Nehme, ‘Justice to Outsiders', above n 27; and Parker, ‘Regulator-Required Corporate Compliance', above n 138.

155 FWO Interview: FWMS.

156 Parker, ‘Regulator-Required Corporate Compliance', above n 1388, 234. See also Nehme, ‘Justice to Outsiders', above n 27, 98–9.

157 Parker, ‘Regulator-Required Corporate Compliance', above n 1388, 237.

158 Fair Work Act s 715(7).

159 Nehme, ‘Enforceable Undertaking and its Impact on Private Lawsuit', above n 104, 160.

160 Ibid.

161 See Voon, Tania, ‘Overstated Undertakings: Recent Developments for Compliance Programs’ (1998) 6 Trade Practices Law Journal 196Google Scholar, which considers the implications arising from the case of Australian Competition and Consumer Commission v Z-Tek Computers Pty Ltd (1997) 148 ALR 339.

162 Nehme, ‘Enforceable Undertaking and its Impact on Private Lawsuit', above n 104.

163 See ibid; Hodgekiss, Christopher, ‘Section 87B Undertakings — Status and Interpretation: Toll Holdings Ltd v ACCC’ (2010) 18 Trade Practices Law Journal 124.Google Scholar

164 See discussion above n 944.

165 FWO Interview: FWMS.