Mandate, Discretion and Professionalisation in an Employment Standards Enforcement Agency: An Antipodean Experience

Law & Policy, Vol. 35, No. 1-2, 2013

U of Melbourne Legal Studies Research Paper No. 664

48 Pages Posted: 16 Dec 2013

See all articles by John Howe

John Howe

University of Melbourne Law School

Tess Hardy

University of Melbourne - Law School

Sean Cooney

University of Melbourne - Law School

Date Written: December 15, 2013

Abstract

In recent years there has been a resurgence of scholarly interest in the operation and effect of labour inspectorates around the world. This article aims to contribute to this mounting comparative and socio-legal literature by considering the emergence of an active and high profile enforcement agency in Australia – the Fair Work Ombudsman (FWO). Drawing on the experiences of inspectors and senior managers at the FWO, we examine the structure and mandate of the agency, as well as the discretion afforded to, and the professionalisation of, individual inspectors. While some have sought to draw a distinction between a rule-bound, specialised approach characteristic of certain “Anglo-American” countries and the so-called “Franco-Iberian” model, which places a greater emphasis on flexibility and pragmatism, we found that the FWO does not necessarily fit neatly within this dichotomy. Rather, we observe that as the FWO is a new institution, its mode of operation is in the process of evolution. At present it is pluralistic, in the sense that it exhibits a hierarchical, procedural approach in a drive to address concerns of consistency and accountability, while at the same time allowing, and sometimes encouraging, individuals to be experimental and adaptive.

Keywords: regulatory enforcement, employment standards, labour inspection, relational regulation

JEL Classification: K00, K31

Suggested Citation

Howe, John B and Hardy, Tess and Cooney, Sean, Mandate, Discretion and Professionalisation in an Employment Standards Enforcement Agency: An Antipodean Experience (December 15, 2013). Law & Policy, Vol. 35, No. 1-2, 2013, U of Melbourne Legal Studies Research Paper No. 664, Available at SSRN: https://ssrn.com/abstract=2368080

John B Howe (Contact Author)

University of Melbourne Law School ( email )

Centre for Employment & Labour Relations Law
Parkville, Victoria, 3010
Australia
61 3 9344 8924 (Phone)
61 3 9349 4623 (Fax)

Tess Hardy

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Sean Cooney

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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