24 April 2019

During the Hayne Royal Commission, financial regulators were criticised for their reluctance to prosecute lawbreakers. The Fair Work Ombudsman’s latest media release shows the same gutless attitude to worker exploitation. Late last year, labour hire company Agri Labour Australia settled with five workers for $150,000 over wage underpayment claims — avoiding millions of dollars of possible penalties. It is currently in pre-trial mediation in relation to another, bigger claim over allegations of similar rip-offs. At the same time, the FWO launched a limited investigation into one of the farms supplied by Agri Labour — and found over $50,000 in wage violations. But the FWO did not prosecute, instead allowing the company to make a $15,000 “contrition payment” through an Enforceable Undertaking — a legal term for a promise not to do it again. In his report, Commissioner Hayne scolded ASIC for using this approach against banks: “Enforceable undertakings might require a ‘community benefit payment’, but the amount was far less than the penalty that ASIC could properly have asked a court to impose. … When contravening conduct comes to its attention, the regulator must always ask whether it can make a case that there has been a breach and, if it can, then ask why it would not be in the public interest to bring proceedings to penalise the breach.” The Fair Work Ombudsman should take heed and toughen up.