The Fair Work Ombudsman is trumpeting its latest civil case against a dodgy boss. This time it is a restaurateur who allegedly collected a chef’s parental leave payments from the Government, without passing them on to the worker.

I’m pleased that they’re taking him to court, but I’m puzzled by this detail:

Mr Singh allegedly made a false document purporting to show that he paid the parental leave funds in cash to the employee’s husband in May, 2015.

The Fair Work Ombudsman challenged the veracity of the document. …

Fair Work Ombudsman Natalie James says employers who contravene the law and deliberately mislead investigators can expect to face legal action.

Maybe it’s the former prosecutor in me, but I can’t understand why this is only a civil law suit.

The Commonwealth Criminal Code states:

137.1 False or misleading information

  1. A person commits an offence if:
    1. the person gives information to another person; and
    2. the person does so knowing that the information:
      1. is false or misleading; or
      2. omits any matter or thing without which the information is misleading; and
    3. any of the following subparagraphs applies:
      1. the information is given to a Commonwealth entity…

Penalty: Imprisonment for 12 months.

The FWO is a Commonwealth entity, and the employer is said to have deliberately misled investigators by providing them with false documents. It seems to fit fairly neatly into s137.1.

I note that the FWO Guidance Note 1 – Litigation Policy includes the following:

Where the FWO becomes aware of offences having occurred it will, in the ordinary course of events, refer a brief to the CDPP.

I’d like to know whether the FWO referred a brief to the CDPP, and if not, what takes this case outside “the ordinary course of events”?

A quick look at some other recent FWO press releases suggests this is not a one-off. There was an accountant “allegedly creating false pay records that were used to try to cover-up the extent of the underpayments”, a retailer who allegedly provided “false records … to the Fair Work Ombudsman”, a trolley collection boss who allegedly “provided records that he knew contained false information relating to a number of employees” — and that’s just in the last month.

I would expect that crimes would be referred to the criminal prosecutors, especially when they involve allegations of forgery to mislead government investigators. You can be sure that an employee who stole $12,000 from their boss, and then used forged documents to throw the police off the scent, would be hauled into court on criminal charges.

Why don’t bosses face the same rules?