FWO does not prosecute crime, court says

Cases

FWO does not prosecute crime, court says

The role of the Fair Work Ombudsman is not necessarily to prosecute criminal activity, because civil penalties rather than criminal penalties are imposed, the Federal Circuit Court has pointed out.

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The role of the Fair Work Ombudsman (FWO) is not necessarily to prosecute criminal activity, because civil penalties rather than criminal penalties are imposed, the Federal Circuit Court has pointed out.
 
The court noted that the FWO had misrepresented the nature of the matters on appeal by suggesting criminal prosecutions were underway, but nevertheless dismissed the employer’s appeal as well as cross-appeals from the FWO.
 
 
Media releases were misleading
 
Justice Collier considered the characterisation of the proceeding as ‘prosecutions’ as inappropriate, but this was found not to be sufficient to overturn the original findings against the employer:
‘… I accept that the release incorrectly asserted that the applicant was “prosecuting” the respondents.
The proceedings commenced by the applicant are for the imposition of a civil penalty.
 
The word “prosecuting” can have different meanings, but in the context in which it was used in the release, the implication arising from it is of some criminality on the part of the respondents. Given the context, that is an inference that is fairly open.
 
The media release of 13 June, 2012 also incorrectly stated that the second respondent was being “prosecuted”. That release stated that: 
“It is the Fair Work Ombudsman’s second prosecution case against Mr B. Earlier this year, the Fair Work Ombudsman launched a prosecution alleging Mr B was involved in underpaying a worker more than $19,000.”
I accept that this statement is misleading. The Fair Work Ombudsman has not prosecuted Mr B as alleged or at all. The release plainly identified the respondents and from where the respondent's business was operated ...

… In Fair Work Ombudsman v Revolution Martial Arts Pty Ltd & Anor [2013] FMCA 125, F. Turner FM ... said:
“… The Court has regard to the decision in Fair Work Ombudsman v Cleaners New South Wales Pty Ltd [2009] FMCA 683 ... that embarrassment from publicity is a penalty in itself. The Court has regard to this in assessing the aggregate penalties to be imposed …’
 
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