Fair Work Ombudsman enforcement powers — notices, undertakings and litigation
How the Fair Work Ombudsman uses Compliance Notices, Enforceable Undertakings, Infringement Notices and Federal Court litigation to enforce the Fair Work Act.
FWO role and powers
The Fair Work Ombudsman (FWO) is established under section 681 of the Fair Work Act 2009 (Cth). The FWO investigates whether employers and other parties are complying with workplace laws, including the Fair Work Act, the National Employment Standards, modern awards, enterprise agreements and registered fair work instruments.
FWO Inspectors are appointed under section 700 and hold powers to enter premises and inspect records. These powers are detailed in Subdivision E of Division 3 of Part 5-2 of the Fair Work Act.
The FWO has the ability to seek civil penalties through the Federal Court or the Federal Circuit and Family Court. This process is outlined in Part 4-1 of the Fair Work Act.
Compliance Notices and Infringement Notices
A Compliance Notice may be issued by a Fair Work Ombudsman (FWO) Inspector under section 716 of the Fair Work Act. This occurs when the Inspector reasonably believes a person has contravened a provision of the Act. The notice can require the recipient to take specific actions, such as back-paying employees, calculating entitlements, and providing evidence of compliance.
Alternatively, an Infringement Notice may be issued under section 558 of the Act. This provides an option of a fixed penalty as an alternative to commencing court proceedings.
Failure to comply with a Compliance Notice constitutes a civil penalty contravention in itself.
Enforceable Undertakings
An Enforceable Undertaking (EU) is a written agreement provided to the Fair Work Ombudsman (FWO) under section 715 of the Fair Work Act. These undertakings typically involve commitments from a person, such as an employer, to address workplace non-compliance. Common commitments include back-paying employees, implementing compliance programs, conducting audits, and publishing information.
EUs offer an alternative pathway to resolving workplace issues, avoiding formal court proceedings. Once finalised, these undertakings are published on the FWO website, increasing transparency and providing a public record of commitments made.
Non-compliance with an EU constitutes a separate matter that can be enforced in the Federal Court.
Civil penalties — court action
The Fair Work Ombudsman may initiate court action to seek civil penalties for serious contraventions of the Fair Work Act. The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 increased the maximum civil penalties applicable to these contraventions.
From 27 February 2024, the maximum penalties for serious contraventions are five times the standard maximum. Wage theft Wage theft criminal — Australia became a criminal offence from 1 January 2025 under section 327A of the Fair Work Act.
For individuals found guilty of wage theft, the maximum criminal penalty is imprisonment for up to 10 years. For body corporates, the maximum criminal penalty is three times the amount of the underpayment, or $7.825 million, whichever is greater.
Frequently asked
Can FWO charge an employer for a compliance audit?
No. FWO investigations and audits are conducted at no cost to the employer. However, costs of remediation (back-pay, system fixes) are borne by the employer.
Is an Enforceable Undertaking confidential?
No. EUs accepted by FWO are published on the Fair Work Ombudsman website and form part of the public record.