Dealing with the Fair Work Ombudsman

While the Fair Work Ombudsman may appear to some employers mostly as an agent designed to enforce Fair Work legislation, they also serve a very helpful purpose by providing advice and education to businesses and employers in general.

Points to bear in mind

• If you are an employer and are unsure of your Fair Work obligations, the Ombudsman are available to give advice where necessary.
• Both employers and employees can contact the Fair Work Ombudsman for advice on understanding the terms associated with the applicable Modern Award for their industry or role. Alternatively, there is also the opportunity to check and clarify entitlements within an Enterprise Agreement such as pay rates and holidays.
• So if an employee suspects, or is aware of the fact, that they are not receiving the correct entitlements as per Fair Work legislation, the Ombudsman are available to help resolve the issue through processes like mediation.  However, their emphasis is on early intervention and resolution by providing advice and support. Which means that seeking the advice of the Ombudsman well in advance of any issues arising is the best way to prevent them occurring in the first place.
• You should also know that Ombudsman inspectors have a high level of power when they are conducting investigations. They are permitted access to inspect workplaces, review and copy documentation and records and even interview any person they believe will be able to assist with determining an outcome. For the most part, Ombudsman respond to employee complaints to conduct investigations. For example, if any of your employees have underpayment queries or make complaints about actions and entitlements at the workplace, you will most likely receive a visit from an inspector.

JFM Law’s 10 Steps to Respond to the Fair Work Ombudsman

If an employer is approached by the Fair Work Ombudsman, JFM Law suggests the following strategy:

1. Speak to your accountants and lawyers to establish whether there needs to be a workplace audit.
2. Look at the employment contract that has been queried.
3. Look at the award.
4. Check hours worked.
5. With expert advice, write to the Fair Work Ombudsman – do not speak to them over the phone!
6. Set up a telephone conference with a lawyer, accountant, and the Fair Work Ombudsman to discuss the issue.
7. Draft letters in response with a lawyer’s help.
8. If there has been an underpayment, the employer and their accountant must work together to calculate what is owing to the employee.
9. Carry out a workplace audit and present the results to the Fair Work Ombudsman.
10. Make the payment if necessary.

Contact JFM Law on (02) 9199 8597 if you have discovered a major underpayment. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au.

The information contained in this post is current at the date of editing – 5 August 2024.