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There are a number of stages to an investigation. However, depending on what a Fair Work Inspector finds during the first stages of an investigation, then the latter stages may not need to happen.
Stage 1: Assisted voluntary resolution (AVR)
The Fair Work Inspector talks to the person who made the workplace complaint and the party the complaint is about.
At this stage, the Fair Work Inspector might not formally decide that there’s a contravention of Commonwealth workplace laws (ie. they might not decide that someone hasn’t followed the law).
The Fair Work Inspector will help both parties try to resolve the complaint and agree on how to fix it. This is called 'assisted voluntary resolution' (AVR).
This may mean the Fair Work Inspector doesn't have to take the next, more formal investigation steps.
Stage 2: Full investigation & compliance
If the complaint isn't or can't be resolved through an AVR, the Fair Work Inspector continues the investigation to decide if there's a contravention of Commonwealth workplace laws.
During this stage, and depending on the type of complaint, the Fair Work Inspector might offer the parties formal mediation as a way to find a solution.
The mediation process involves a Fair Work Mediator who helps the parties agree to an outcome. This is made formal in a 'deed of final agreement'.
Where mediation doesn't result in an agreed outcome, the full investigation continues.
If the investigation shows a party has contravened the laws, the Fair Work Inspector may give them a contravention letter or a compliance notice. These tell the party how to fix the contravention (if it can be fixed).
If the party fixes the contravention at this stage, it's seen as voluntary compliance and the investigation is usually complete. However, if the contravention is serious, we may need to go to the next stage - 'enforcement'.
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Stage 3: Enforcement
This stage happens when the party fails to fix the contravention, or the matter is serious.
At the enforcement stage, we may take the matter to court.
Guided by our 'Litigation Policy', we consider whether the matter should go to court. The policy includes other ways, apart from litigation, to fix the matter, for example, entering into an enforceable undertaking.
When deciding whether to litigate, we consider various issues, such as whether legal action is in the public interest.
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Types of investigations
There are 3 main types of investigations
1. Wages and conditions investigations
Most of our investigations fall into this category.
They mostly cover entitlement and remuneration issues, including:
- pay
- leave
- overtime
- penalty rates
- allowances
- entitlements related to termination (eg. redundancy pay).
These investigations may also include issues related to employment conditions.
These investigations usually start with an employee or former employee making a complaint to us. They can also start from targeted audits and campaigns, requests from government ministers, media reports, or other information we get.
2. Complex case investigations
These are different from standard wages and conditions investigations because of the type of alleged contravention.
Usually complex case investigations involve allegations of 1 or more of the following:
- undue influence or pressure
- coercion
- freedom of association
- industrial action
- transmission or transfer of business
- legally technical cases
- right of entry
- agreement making (before they’re lodged)
- sham contracting
- false or misleading documents
- discrimination.
While in most cases a Fair Work Inspector investigates these, sometimes the Complex Case Unit or Discrimination Unit will need to investigate.
3. Audits & campaigns
These are proactive campaigns we launch to ensure compliance with Commonwealth workplace laws.
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