Even though the Fair Work Ombudsman (FWO) had been active in securing an employee’s entitlements, the employee was not a party to the proceedings that did so, so he was free to pursue his employer on other matters, according to the High Court.
The employer essentially argued that the employee was double-dipping by pursuing claims when the FWO had already sorted out his entitlements in other proceedings. However the High Court made the distinction that the FWO was merely pursuing its statutory responsibilities of upholding industrial laws. The employee had not been a litigant in those proceedings, just a beneficiary of them.
The High Court pointed out that the actions of the FWO stand alone in the sense that it does not need the ‘authority’ of an aggrieved person (in this case the employee) to bring an action to secure compliance with an industrial law. It has statutory powers and responsibilities to do that in its own right. An employee in turn has his/her own right to pursue entitlements too.
Most employers who are inspected by the FWO assume that if the FWO makes adverse findings and the matters are cleared up at that stage, that that is the end of the matter. That isn’t necessarily so as this case demonstrates.
First of all, the FWO may only do a partial examination of records, so any areas not looked at could still provide areas for employee initiated actions. Secondly, even if the FWO successfully prosecutes an employer for breaches of an award or agreement that does not mean the FWOs actions prevent subsequent proceedings. The FWO action does not provide estoppel restraining any employee from future actions. Thirdly, even though sometimes the FWO, an employee and employer settle a claim through mediation, that does not necessarily mean the law has been complied with, and that in turn means subsequent litigation cannot be ruled out.