Understanding the Fair Work Ombudsman’s Role
What the Fair Work Ombudsman (FWO) Handles
The FWO is Australia’s national workplace relations regulator, responsible for:
- Enforcing compliance with workplace laws
- Investigating complaints about underpayments and entitlements
- Providing education and advice to employers and employees
- Taking legal action against non-compliant businesses
Types of Complaints They Handle
- Wage theft and underpayments
- Unpaid superannuation
- Sham contracting arrangements
- Unfair dismissal claims (though these typically go to Fair Work Commission)
- Bullying and discrimination in the workplace
- Record-keeping violations
- Refusal to provide payslips
What They Don’t Handle
- Workplace health and safety issues (Safe Work Australia)
- WorkCover or workers compensation claims (state-based authorities)
- Centrelink or social security payments
- Immigration or visa matters
Step-by-Step: How to Lodge a Complaint
Step 1: Gather Your Evidence (1-2 Weeks)
Before lodging, collect comprehensive evidence.
Essential Documents:
- Employment contracts and agreements
- Payslips (showing discrepancies)
- Timesheets, rosters, or work diaries
- Bank statements showing payments
- Award or agreement documentation
- Communication records (emails, texts about pay)
Supporting Evidence:
- Witness statements from coworkers
- Photos of workplace notices or rosters
- Record of hours worked (if no formal timesheets)
- Calculations of what you believe you’re owed
Step 2: Attempt Informal Resolution (1-3 Weeks)
The FWO encourages resolving issues directly first:
- Calculate what you’re owed using the Fair Work Pay Calculator
- Raise the issue with your manager or HR department
- Provide your calculations and evidence
- Allow reasonable time for response (usually 14 days)
- Keep records of all communications
Step 3: Prepare Your Complaint (1-2 Days)
Organise your information.
Personal Details:
- Full name and contact information
- Tax File Number (optional but helpful)
- Current employment status
Employer Information:
- Business name and ABN
- Workplace address
- Contact person details
Complaint Details:
- Specific issues and time periods
- Amounts you believe you’re owed
- Previous attempts to resolve
- Supporting evidence checklist
Step 4: Lodge Your Complaint (Online Preferred)
Online Submission:
- Visit Fair Work Ombudsman website
- Use the “Online complaint form”
- Upload digital copies of evidence
- Receive immediate confirmation
Alternative Methods:
- Phone: 13 13 94 (with documents ready)
- In person: At Fair Work offices
- Post: Download and mail complaint forms
Step 5: Initial Assessment (1-4 Weeks)
After submission:
- FWO reviews completeness of your complaint
- May request additional information
- Assesses jurisdiction and merit
- Assigns a case officer if proceeding
The Investigation Process: What Happens Next
Phase 1: Case Assessment (2-4 Weeks)
- Case Officer Actions
- Reviews all submitted evidence
- Identifies relevant awards/agreements
- Calculates potential underpayments
- Determines investigation approach
- Contacts employer for their response
Phase 2: Employer Response (2-6 Weeks)
The employer typically has 14 days to:
- Provide their version of events
- Submit their records and evidence
- Respond to specific allegations
- Propose resolution options
Phase 3: Investigation & Evidence Gathering (4-12 Weeks)
FWO Powers Include:
- Issuing Formal Notices to produce documents
- Conducting workplace visits and audits
- Interviewing witnesses and parties
- Examining financial and payroll records
Phase 4: Resolution Options (Timeline Varies)
Voluntary Compliance
- Employer acknowledges issues
- Agrees to back-pay owed amounts
- Implements corrective measures
- No formal penalties applied
Enforcement Action (When employer is uncooperative)
- Compliance Notice issued (legally enforceable)
- Infringement notices (fines)
- Litigation in court proceedings
- Public naming of non-compliant businesses
Employer’s Perspective: The Response Process
How Employers Should Respond
Recommended Steps:
- Acknowledge receipt of FWO complaint immediately
- Conduct internal investigation of allegations
- Seek professional advice if unsure about obligations
- Cooperate fully with FWO requests
- Rectify identified issues promptly
Consequences of Non-Compliance
| Response Type | Potential Outcomes |
| Full Cooperation |
Voluntary resolution, no penalties |
| Partial Cooperation |
Compliance notices, potential fines |
| Non-Cooperation |
Litigation, significant penalties, public naming |
Employer Penalties Under New Laws
Recent “Closing Loopholes” legislation introduced:
- Criminal penalties for intentional wage theft
- Increased fines for serious contraventions
- Director liabilities for company violations
- Public naming of non-compliant businesses
Case Study: Successful Complaint Resolution
Hospitality Worker Wage Theft Case
Background:
- Café worker paid flat $25/hour despite award requiring $29.84
- No penalty rates for weekend work
- Incomplete payslips provided
Process:
- Worker kept detailed diary of hours and duties
- Used Fair Work calculator to identify underpayments
- Attempted informal resolution (unsuccessful)
- Lodged FWO complaint with comprehensive evidence
Outcome:
- FWO investigation confirmed $8,200 underpayment
- Employer required to back-pay full amount plus interest
- Compliance notice issued for future payslip requirements
- Resolution achieved within 14 weeks
How Workstem Prevents Unpaid Wages
Automated Compliance Solutions
Simplify award interpretation and payroll processing with Workstem, the all-in-one workforce management & payroll software designed for every industry.
Our payroll compliance system ensures:
- Award Interpretation: Automatic application of correct rates
- Real-time Calculations: Accurate overtime and penalty calculations
- Record Keeping: Digital audit trails for 7+ years
- Compliance Alerts: Proactive notification of potential underpayments
Employer Benefits
- 99.8% payroll accuracy rate
- Zero wage theft penalties for compliant clients
- 75% reduction in payroll processing time
- Automated Fair Work reporting
Choose from our Standard or Advanced plan to suit your business needs, and stay Fair Work compliant with confidence.
Underpayment Q&A: Your Top Questions Answered
Q1: What’s the difference between underpayment and wage theft?
A: Underpayment refers to any instance where employees receive less than their entitled wages, whether intentional or accidental. Wage theft specifically refers to deliberate, intentional underpayment of employees’ entitlements. Since 2024, intentional wage theft can result in criminal penalties including significant fines and even imprisonment in some states.
Q2: Can I claim unpaid wages if I was paid cash-in-hand?
A: Yes, cash payments don’t remove your entitlement to proper wages. You can still make a claim, though it may be more challenging without formal records. Evidence can include bank statements showing regular cash deposits, text messages discussing hours or pay, witness statements from coworkers, or your own detailed records of hours worked.
Q3: What if I signed a contract agreeing to lower rates than the award?
A: Any contract term that provides less than the minimum award or legal entitlements is void and unenforceable. Even if you signed such a contract, you’re still entitled to be paid according to the relevant award or agreement. Employers cannot contract out of their legal obligations.
Q4: How far back can I claim unpaid superannuation?
A: Unlike other wage claims, there’s generally no time limit for claiming unpaid superannuation. You can go back to when the super was first owed, though practical limitations may apply. The ATO can help recover unpaid super going back multiple years.
Q5: What happens if my employer disputes my hours or classification?
A: If your employer disputes your claims, the burden of proof often shifts to them to provide evidence. Employers are legally required to keep accurate time and wages records. If they cannot produce these records, Fair Work may accept your reasonable estimates of hours worked.
Q6: Can I claim for unpaid wages if I’m no longer employed there?
A: Yes, former employees have the same rights to claim unpaid wages as current employees. The process is identical, and time limits still apply (generally 6 years). Many wage claims are actually made by former employees.
Q7: What if I was classified as a contractor but believe I was actually an employee?
A: This is common. If you were really an employee misclassified as a contractor, you can claim all employee entitlements including minimum wages, leave, and superannuation. The Fair Work Ombudsman uses a multi-factor test to determine your true employment status.
Q8: Are there protections against being victimized for making a claim?
A: Yes, the Fair Work Act provides strong protections against adverse action (including dismissal, discrimination, or threats) for exercising workplace rights. If you experience victimization for making a wage claim, you may have additional legal claims against your employer.
Q9: What if my employer says they can’t afford to pay what they owe?
A: Financial difficulty doesn’t remove the legal obligation to pay owed wages. Options include: payment plans (get this in writing), Fair Work enforcement action, or if the company becomes insolvent, claiming through the Fair Work Entitlements Guarantee scheme.
Book a free demo with our payroll experts and experience how Workstem can streamline your payroll and workforce operations.
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