For more than five years Australia has been experiencing an epidemic of non-compliance with employment standards set by labour law. This epidemic continues behind the eclipse of the COVID 19 pandemic. Statutory reform to increase the sanctions available under the Fair Work Act 2009 (Cth) to address non-compliance has stalled.
To date there has been limited consideration of the important role played by the courts in improving compliance with labour laws as they stand. Some attention has been given to courts’ consideration of employment status, and imposition of penalties. However, in a forthcoming article in the Comparative Labor Law & Policy Journal, Guy Davidov and Edo Eshet suggest that we need to look beyond employment status and the sanctions imposed by courts as a result of enforcement action – although these issues remain important – to consider other ways that the courts can induce compliance. This approach explicitly acknowledges that there are a range of reasons for non-compliance, not limited to deliberate or calculative wrongdoing. The various ways that courts promote compliance include the procedural steps that can be taken to signal the importance of an issue in a particular case, the courts’ approach to interpretation of statutory provisions, willingness to attribute third party liability, and the remedies ordered.
In this presentation, Professor John Howe (Director of Melbourne School of Government, Director of the Centre for Employment and Labour Relations Law) will argue that the Australian courts are not doing enough to send a message to businesses and the wider public that non-compliance with minimum employment standards is unacceptable. This undermines the efforts of unions and the Fair Work Ombudsman to maximise deterrence in relation to the current laws. In the absence of further reform, the courts in Australia have an obligation to do more to improve future compliance with employment standards.