{"id":"F2023L01419","name":"Fair Work Act 2009 Direction to Inspectors (October 2023)","slug":"fair-work-act-2009-direction-to-inspectors-october-2023","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":104897,"registerId":"commonwealth-F2023L01419-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Fair Work Act 2009 Direction to Inspectors (October 2023)","content":"Fair Work Act 2009\n\nDIRECTION TO INSPECTORS (October 2023)\n\nI, Anna Booth, the Fair Work Ombudsman acting under subsection 704(1) of the Fair Work Act 2009 (Cth) (FW Act), revoke the Direction dated 22 November 2021 (F2021L01585).\n\nPursuant to subsection 704(1) of the FW Act, I give the following direction to persons appointed as a Fair Work Inspector under subsection 700(1) of the FW Act, in relation to the performance of functions or the exercise of powers as an inspector:\n\n1.  Before commencing litigation, a Fair Work Inspector must:\n\n1.  comply with the Compliance and Enforcement Policy of the Office of the Fair Work Ombudsman; and\n2.  obtain my consent or the consent of a member of staff of the Office of the Fair Work Ombudsman authorised by me to give such consent.\n\n2. In clause 1 of this Direction, commencing litigation means:\n\n1.  the making or lodging of an application to commence civil proceedings, including an appeal, in a court or the Fair Work Commission; or\n2.  applying for leave to intervene or otherwise seeking to intervene in, civil proceedings in a court or the Fair Work Commission,\n\nby or on behalf of a Fair Work Inspector or the Fair Work Ombudsman, where the proceedings relate to the exercise of powers or functions under the FW Act, Fair Work Regulations 2009 (Cth) (FW Regulations) or any other Commonwealth law that confers standing on a Fair Work Inspector or the Fair Work Ombudsman to commence or intervene in civil proceedings.\n\n3. Before taking any steps in a litigation commenced against a Fair Work Inspector or the Fair Work Ombudsman, a Fair Work Inspector must:\n\n1.  comply with the Compliance and Enforcement Policy of the Office of the Fair Work Ombudsman; and\n2.  obtain my consent or the consent of a member of staff of the Office of the Fair Work Ombudsman authorised by me to give such consent.\n\n4. In clause 3 of this Direction, taking any steps in a litigation includes:\n\n1.  lodging, filing or serving any document in relation to civil proceedings, including an appeal, in a court or the Fair Work Commission; or\n2.  corresponding or communicating by any means with a court or the Fair Work Commission in relation to civil proceedings, including an appeal,\n\nby or on behalf of a Fair Work Inspector or the Fair Work Ombudsman, where the proceedings relate to the exercise of powers or functions, including a statutory notice issued by a Fair Work Inspector, under the FW Act, the FW Regulations or any other Commonwealth law.\n\n5. This Direction commences to operate on the date registered on the Federal Register of Legislation, in accordance with the Legislation Act 2003 (Cth).\n\nDated: 19 October 2023\n\nAnna Booth\n\nFair Work Ombudsman","sortOrder":0}],"analysis":{"kimi_summary":{"content_quality":"ok","complexity_score":2,"scope_assessment":{"changed":false,"description":"This instrument maintains the same scope as its predecessor and the underlying legislative intent. It continues the established practice of requiring Ombudsman approval before inspectors commence or participate in litigation. The 2023 version appears to be a routine reissue or minor update rather than an expansion of scope."},"complexity_factors":["Short, single-purpose document (5 clauses only)","Minimal defined terms (only 'commencing litigation' and 'taking any steps in a litigation' are defined)","No cross-references to other legislation beyond basic empowering provisions (ss 700(1), 704(1) FW Act)","Simple conditional structure: 'Before doing X, must do Y and Z'","No exceptions, exemptions, or nested conditions","Straightforward revocation and replacement of previous instrument"],"plain_english_summary":"This instruction requires Fair Work Inspectors to follow the Ombudsman’s Compliance and Enforcement Policy and obtain written approval from the Ombudsman (or authorised delegate) before commencing or responding to any court action. It centralises control over litigation decisions, affecting inspectors and the employers and workers they regulate, and replaces the November 2021 direction."},"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":true,"description":"The Direction expressly revokes the 22 November 2021 Direction and issues new, specific requirements that inspectors must (1) comply with the Office’s Compliance and Enforcement Policy and (2) obtain the Fair Work Ombudsman’s or authorised staff consent before commencing or taking steps in litigation concerning their statutory powers (cl.1–4). The text therefore replaces the prior instrument and centralises litigation authorisation; however, the Direction does not itself provide a clause-by-clause comparison with the revoked instrument, so determining the extent of substantive scope change requires comparing the two texts externally."},"complexity_factors":["Reliance on an external Compliance and Enforcement Policy creates cross-document interaction and shifts substantive detail outside the Direction (cl.1.1, cl.3.1).","Centralised consent requirement vests a discretionary gatekeeping role in the Fair Work Ombudsman or authorised staff, affecting who decides whether litigation proceeds (cl.1.2, cl.3.2).","Broad, operational definitions of ‘commencing litigation’ and ‘taking any steps’ cover applications, appeals, interventions, filings and communications with courts or the Fair Work Commission, increasing coverage and potential for interpretation questions (cl.2, cl.4).","The Direction applies both when inspectors initiate proceedings and when proceedings are taken against them, so it governs plaintiff and defendant conduct (cl.1, cl.3).","The instrument expressly revokes a prior Direction (22 November 2021) but does not include a textual comparison, requiring external comparison to confirm substantive change (preamble).","Administrative and compliance burden on inspectors: added pre-litigation steps, authorisation requests and record-keeping that consume Office resources and staff time (cl.1–4).","Commencement is tied to registration on the Federal Register of Legislation, creating a clear temporal trigger that interacts with the Legislation Act (cl.5)."],"plain_english_summary":"This Direction requires Fair Work Inspectors to follow the Office’s Compliance and Enforcement Policy and obtain the Fair Work Ombudsman’s (or an authorised staff member’s) consent before commencing or taking any steps in litigation about their powers under the Fair Work Act, Regulations or other Commonwealth laws. It centralises the decision to litigate and adds a formal pre-litigation compliance and authorisation step affecting inspectors and the Office (cl.1–4)."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"}},"importantCases":[],"_links":{"self":"/api/acts/fair-work-act-2009-direction-to-inspectors-october-2023","history":"/api/acts/fair-work-act-2009-direction-to-inspectors-october-2023/history","analysis":"/api/acts/fair-work-act-2009-direction-to-inspectors-october-2023/analysis","conflicts":"/api/acts/fair-work-act-2009-direction-to-inspectors-october-2023/conflicts","importantCases":"/api/acts/fair-work-act-2009-direction-to-inspectors-october-2023/important-cases","documents":"/api/acts/fair-work-act-2009-direction-to-inspectors-october-2023/documents"}}